TERMS AND CONDITIONS OF SERVICE
Definitions
“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.
“Southern Horizons” means Southern Horizons Survey Limited, its successors and assigns.
“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Southern Horizons to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Client, is a reference to each Client jointly and severally; and
if the Client is a partnership, it shall bind each partner jointly and severally; and
if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Client’s executors, administrators, successors and permitted assigns.
“Documentation” means any goods, documents, designs, plans, drawings, reports, applications or materials supplied, consumed, created or deposited incidentally by Southern Horizons in the course of it conducting, or supplying to the Client, any Services.
“Services” means all Services supplied by Southern Horizons to the Client at the Client’s request from time to time.
“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 Southern Horizons’ 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.
“Fee” means the price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between Southern Horizons and the Client in accordance with clause 6 of this Contract.
Acceptance
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 Services provided by Southern Horizons.
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.
Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with Southern Horizons and it has been approved with a credit limit established for the account.
In the event that the supply of Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, Southern Horizons reserves the right to refuse delivery.
Any advice, recommendation, information, assistance or service provided by Southern Horizons in relation to Services supplied is given in good faith to the Client, or the Client’s agent and is based on Southern Horizons’ own knowledge and experience and shall be accepted without liability on the part of Southern Horizons. Where such advice or recommendations are not acted upon then Southern Horizons shall require the Client or their agent to authorise commencement of the Services in writing. Southern Horizons shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
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.
Errors and Omissions
The Client acknowledges and accepts that Southern Horizons shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
resulting from an inadvertent mistake made by Southern Horizons in the formation and/or administration of this Contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by Southern Horizons in respect of the Services.
In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Southern Horizons; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
Authorised Representatives
Unless otherwise limited as per clause 4.2 the Client agrees that should the Client introduce any third party to Southern Horizons as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Services or Documentation on the Client’s behalf and/or to request any variation to the works on the Client’s behalf (such authority to continue until all requested works have been completed or the Client otherwise notifies Southern Horizons in writing that said person is no longer the Client’s duly authorised representative).
In the event that the Client’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Southern Horizons in writing of the parameters of the limited authority granted to their representative.
The Client specifically acknowledges and accepts that they will be solely liable to Southern Horizons for all additional costs incurred by Southern Horizons (including Southern Horizons’ profit margin) in providing any Documentation, Services, or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).
Change in Control
The Client shall give Southern Horizons 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 Southern Horizons as a result of the Client’s failure to comply with this clause.
Fee and Payment
At Southern Horizons’ sole discretion the Fee shall be either:
as indicated on any invoice provided by Southern Horizons to the Client; or
the Fee as at the date of delivery of the Services according to Southern Horizons’ current price list; or
Southern Horizons’ 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.
Southern Horizons reserves the right to change the Fee if a variation to Southern Horizons’ quotation is requested Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as poor weather conditions, limitations to accessing the site, change to the scope of Services, unknown site conditions, prerequisite work by any third party not being completed or as a result of any increase to Southern Horizons in the cost of disbursements (including but not limited to council fees, third party consultants, etc.) and labour) will be charged for on the basis of Southern Horizons’ quotation and will be shown as variations on the invoice. The Client shall be required to respond to any variation submitted by Southern Horizons within ten (10) working days. Failure to do so will entitle Southern Horizons to add the cost of the variation to the Fee. Payment for all variations must be made in full at the time of their completion.
At Southern Horizons’ sole discretion a deposit may be required.
Time for payment for the Services being of the essence, the Fee will be payable by the Client on the date/s determined by Southern Horizons, which may be:
by way of instalments/progress payments in accordance with Southern Horizons’ payment schedule;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Southern Horizons.
Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Client and Southern Horizons.
Southern Horizons may in its discretion allocate any payment received from the Client towards any invoice that Southern Horizons determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Southern Horizons may re-allocate any payments previously received and allocated.
The Client shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Client by Southern Horizons nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Fee does not include GST. In addition to the Fee, the Client must pay to Southern Horizons an amount equal to any GST Southern Horizons must pay for any supply by Southern Horizons under this or any other agreement for providing Southern Horizons’ Services. 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 Fee. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Fee except where they are expressly included in the Fee.
Reimbursable Expenses
Southern Horizons shall be reimbursed for all expenses properly incurred in connection with the provision of the Services, except where such expenses are specifically stated in writing by Southern Horizons as being included in the Fee. All reimbursable expenses (e.g. travel, communications, couriers, etc.) will be charged as per the proposal/quotaton or otherwise at the cost involved (excluding GST) to Southern Horizons, plus any applicable administration fee.
Southern Horizons’ Obligations
Southern Horizons warrants that it has the necessary skills, competence, and experience to undertake and complete the Services and shall at all times apply such skills, competence and experience in performance of the Services.
Southern Horizons accepts that it shall be appointed, and shall be entitled to act, as the Client’s agent for the purposes of the Services for the term of this Contract.
If the Client shall instruct Southern Horizons to change the scope of the Services, Southern Horizons shall promptly notify the Client in writing of any variation in Fees pursuant to clause 6.2 of this Contract. The Client agrees that additional fees may be payable.
Southern Horizons shall keep full records of the Services provided in the manner determined by Southern Horizons, and shall provide to the Client with updates with respect of the Services at the time and in the manner determined by Southern Horizons in Southern Horizons’ absolute discretion.
Client’s Obligations
The Client appoints Southern Horizons as its agent for the purposes of the Services for the term of this Contract.
The Client shall provide to Southern Horizons all documentation and other information as and when requested. The Client acknowledges that the ability of Southern Horizons to provide the Services is dependent upon the Client complying with this clause.
The Client acknowledges that if their requirements change during the term of the Contract, the Fee may be subject to change as per clause 6.2.
Provision of the Services
At Southern Horizons’ sole discretion delivery of the Services shall take place when the Services are supplied to the Client at the Client’s nominated address.
Subject to clause 10.3 it is Southern Horizons’ responsibility to ensure that the Services start as soon as it is reasonably possible.
The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Southern Horizons claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Southern Horizons’ control, including but not limited to any failure by the Client to:
make a selection; or
have the site ready for the Services; or
notify Southern Horizons that the site is ready.
Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this Contract.
Southern Horizons may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
Any time specified by Southern Horizons for delivery of the Services is an estimate only and Southern Horizons 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 Southern Horizons is unable to supply the Services as agreed solely due to any action or inaction of the Client then Southern Horizons shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
Risk
Irrespective of whether Southern Horizons retains ownership of any Documentation all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as Southern Horizons may repossess the Documentation. The Client must insure all Documentation on or before delivery.
Southern Horizons reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Documentation as a result of the Client’s failure to insure in accordance with clause 11.1.
Use of Reports and Advice
Any advice that Southern Horizons gives to the Client, its employees or agents is for the Client’s exclusive use and must be used only for the purpose described in the Proposal.
Unless Southern Horizons gives the Client prior written consent, the advice:
must not be used or disclosed for any other purpose, referred to in any document or made available to any other person, except the Client’s lawyers or other professional advisor assisting in the Services; and
may not be relied upon by any other party other than the Client.
Southern Horizons is not responsible to any other party other than the Client, who is provided with or obtains a copy of Southern Horizons’ advice.
Southern Horizons’ advice may, on occasion, be given to the Client in draft form or orally only on the basis that the Client may not rely on advice in that form. Accordingly, Southern Horizons shall not be responsible if the Client or any other party relies on the advice or chooses to act, or refrains from acting, on the basis of any draft advice or oral comments or advice.
The Client acknowledges that the signed copy of Southern Horizons’ report is the definitive version.
Sometimes circumstances may change after Southern Horizons has provided their final report to the Client. If this happens Southern Horizons will not update any recommendations it has provided to the Client under these terms and conditions. If the Client would like Southern Horizons to update their final report, they must contact Southern Horizons and both parties can discuss a suitable term of engagement with the Client.
Access
The Client shall ensure that Southern Horizons has clear and free access to the work site at all times to enable them to undertake the Services. Southern Horizons 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 Southern Horizons.
It is the responsibility of the Client to ensure that access is suitable to accept the weight of vehicles as may be deemed necessary by Southern Horizons.
Compliance with Laws
The Client and the Company 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.
The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
Notwithstanding clause 14.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) the Company 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 third party head contractor.
Title
Southern Horizons and the Client agree that where it is intended that the ownership of Documentation is to pass to the Client that such ownership shall not pass until:
the Client has paid Southern Horizons all amounts owing for the Services; and
the Client has met all other obligations due by the Client to Southern Horizons in respect of all contracts between Southern Horizons and the Client.
Receipt by Southern Horizons 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 and until then Southern Horizons’ ownership or rights in respect of the Documentation shall continue.
It is further agreed that:
the Client is only a bailee of the Documentation and must return the Documentation to Southern Horizons immediately upon request by Southern Horizons;
the Client holds the benefit of the Client’s insurance of the Documentation on trust for Southern Horizons and must pay to Southern Horizons the proceeds of any insurance in the event of the Documentation being lost, damaged or destroyed;
the Client must not sell, dispose, or otherwise part with possession of the Documentation. If the Client sells, disposes or parts with possession of the Documentation then the Client must hold the proceeds of sale of the Documentation on trust for Southern Horizons and must pay or deliver the proceeds to Southern Horizons on demand;
the Client should not convert or process the Documentation 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 Southern Horizons and must dispose of or return the resulting product to Southern Horizons as Southern Horizons so directs;
the Client shall not charge or grant an encumbrance over the Documentation nor grant nor otherwise give away any interest in the Documentation while they remain the property of Southern Horizons; and
the Client irrevocably authorises Southern Horizons to enter any premises where Southern Horizons believes the Documentation are kept and recover possession of the Documentation.
Personal Property Securities Act 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
these terms and conditions constitute a security agreement for the purposes of the PPSA; and
a security interest is taken in all Documentation that have previously been supplied and that will be supplied in the future by Southern Horizons to the Client and the proceeds from such Documentation.
The Client undertakes to:
sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Southern Horizons may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
indemnify, and upon demand reimburse, Southern Horizons for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Documentation charged thereby;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Documentation or the proceeds of such Documentation in favour of a third party without the prior written consent of Southern Horizons.
Southern Horizons and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
Unless otherwise agreed to in writing by Southern Horizons, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Client shall unconditionally ratify any actions taken by Southern Horizons under clauses 16.1 to 16.5.
Subject to any express provisions to the contrary (including those contained in this clause 16), 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
In consideration of Southern Horizons agreeing to supply 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, and the Client grants a security interest in all of its present and after-acquired property, 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). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
The Client indemnifies Southern Horizons from and against all Southern Horizons’ costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising Southern Horizons’ rights under this clause.
The Client irrevocably appoints Southern Horizons and each director of Southern Horizons as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.
Defects
The Client shall inspect the Services on delivery and shall within seven (7) days of delivery notify Southern Horizons of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford Southern Horizons an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
For defective Services, which Southern Horizons has agreed in writing that the Client is entitled to reject, Southern Horizons’ liability is limited to either (at Southern Horizons’ discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 18.1.
Consumer Guarantees Act 1993
If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Services by Southern Horizons to the Client.
Confidentiality and Intellectual Property
Both the Client and Southern Horizons agree to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party's written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
Exceptions to clause 20.1 will be disclosures to legal advisers, disclosures required by law, and disclosures necessary for the proper performance of the Services.
Where Southern Horizons has designed, drawn or developed Documentation for the Client, then the copyright in any Documentation shall remain the property of Southern Horizons. Under no circumstances may such designs, drawings and documents be used without the express written approval of Southern Horizons.
The Client warrants that all designs, specifications or instructions given to Southern Horizons will not cause Southern Horizons to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Southern Horizons against any action taken by a third party against Southern Horizons in respect of any such infringement.
The Client agrees that Southern Horizons may (at no cost) use for the purposes of marketing or entry into any competition, any Documentation which Southern Horizons has created for the Client.
Default and Consequences of Default
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 Southern Horizons’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes Southern Horizons any money the Client shall indemnify Southern Horizons from and against all costs and disbursements incurred by Southern Horizons in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Southern Horizons’ collection agency costs, and bank dishonour fees).
Further to any other rights or remedies Southern Horizons may have under this Contract, if a Client has made payment to Southern Horizons, 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 Southern Horizons under this clause 21, 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.
Without prejudice to Southern Horizons’ other remedies at law Southern Horizons shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Southern Horizons shall, whether or not due for payment, become immediately payable if:
any money payable to Southern Horizons becomes overdue, or in Southern Horizons’ opinion the Client will be unable to make a payment when it falls due;
the Client has exceeded any applicable credit limit provided by Southern Horizons;
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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Cancellation
Without prejudice to any other remedies Southern Horizons may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Southern Horizons may suspend or terminate the supply of Services to the Client. Southern Horizons will not be liable to the Client for any loss or damage the Client suffers because Southern Horizons has exercised its rights under this clause.
Southern Horizons 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 Southern Horizons shall repay to the Client any money paid by the Client for the Services. Southern Horizons shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by Southern Horizons as a direct result of the cancellation (including, but not limited to, any loss of profits).
Privacy Policy
All emails, documents, images or other recorded information held or used by Southern Horizons is “Personal Information” as defined and referred to in clause 23.3 and therefore considered confidential. Southern Horizons 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 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”). Southern Horizons acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Southern Horizons that may result in serious harm to the Client, Southern Horizons 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.
Notwithstanding clause 23.1, privacy limitations will extend to Southern Horizons in respect of Cookies where the Client utilises Southern Horizons’ website to make enquiries. Southern Horizons 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:
IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to Southern Horizons when Southern Horizons sends an email to the Client, so Southern Horizons may collect and review that information (“collectively Personal Information”)
If the Client consents to Southern Horizons’ use of Cookies on Southern Horizons’ website and later wishes to withdraw that consent, the Client may manage and control Southern Horizons’ privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
The Client authorises Southern Horizons or Southern Horizons’ agent to:
access, collect, retain and use any information about the Client;
(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
for the purpose of marketing products and services to the Client.
disclose information about the Client, whether collected by Southern Horizons from the Client directly or obtained by Southern Horizons 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.
Where the Client is an individual the authorities under clause 23.3 are authorities or consents for the purposes of the Privacy Act 2020.
The Client shall have the right to request (by e-mail) from Southern Horizons, a copy of the Personal Information about the Client retained by Southern Horizons and the right to request that Southern Horizons correct any incorrect Personal Information.
Southern Horizons will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting Southern Horizons via e-mail. Southern Horizons will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
Service of Notices
Any written notice given under this Contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this Contract;
by sending it by registered post to the address of the other party as stated in this Contract;
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;
if sent by email to the other party’s last known email address.
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.
Trusts
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 Southern Horizons may have notice of the Trust, the Client covenants with Southern Horizons as follows:
the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
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;
the Client will not without consent in writing of Southern Horizons (Southern Horizons will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
the removal, replacement or retirement of the Client as trustee of the Trust;
any alteration to or variation of the terms of the Trust;
any advancement or distribution of capital of the Trust; or
any resettlement of the trust property.
Dispute Resolution
Where a dispute arises between the parties, it will be referred to Southern Horizons and the Client’s directors for resolution. Southern Horizons and the Client agree to solve any disputes amicably and in good faith and on a without prejudice basis and not begin court proceedings or mediation or arbitration proceedings until the dispute resolution channel provided in this clause has been exhausted.
The dispute resolution process will be as follows:
A party may give notice to the other party about the nature of the dispute (a “Dispute Notice”) and the parties will seek to reach settlement amongst themselves within ten (10) Business Days of receipt of the Dispute Notice (“Negotiation Period”). Should the parties fail to determine the dispute within the Negotiation Period, the parties may seek within a further period of ten (10) Business Days (or such longer period as agreed in writing between the parties) to reach agreement on:
a mediation procedure out of courts and arbitration proceedings, (such as mediation, reconciliation or expert determination process);
the steps to be taken by each party and the timing of those steps;
who will be the independent person/body conducting the mediation process and who will pay for such independent person’s/ body’s professional fees and expenses.
If the parties fail to solve the entire dispute or fail to reach agreement on any of the matters described above within twenty (20) Business Days (or any other period agreed in writing) from the date of the Dispute Notice, either Southern Horizons or the Client may commence court proceedings or arbitration proceedings to resolve the dispute.
General
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.
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 Gore Courts, New Zealand.
Subject to the CGA, Southern Horizons 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 Southern Horizons of these terms and conditions (alternatively Southern Horizons’ liability shall be limited to damages which under no circumstances shall exceed the Fee of the Services).
Southern Horizons may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
The Client cannot licence or assign without the written approval of Southern Horizons.
Southern Horizons 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 Southern Horizons’ sub-contractors without the authority of Southern Horizons.
The Client agrees that Southern Horizons 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 Southern Horizons to provide Services to the Client.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to Southern Horizons.
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.