Terms & Conditions
HYDROFLOW DISTRIBUTORS LIMITED TERMS AND CONDITIONS OF TRADE
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 “Hydroflow” means Hydroflow Distributors Limited, its successors and assigns.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Hydroflow to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by Hydroflow to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using Hydroflow’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.6 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between Hydroflow and the Customer in accordance with clause 6 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with Hydroflow and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, Hydroflow reserves the right to refuse delivery and/or place the Customer on “stop credit”. If the Customer is placed on “stop credit”, Hydroflow will only supply the Goods on a “cash” basis, so that the Customer must pay for the Goods prior to the Goods being delivered.
2.6 The Customer acknowledges and accepts that 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, Hydroflow reserves the right to vary the Price with alternative Goods as per clause 6.2.
2.7 Notwithstanding clause 2.6 Hydroflow also reverses the right at their discretion to introduce additional new Goods as part of the Goods to be supplied.
2.8 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. Errors and Omissions
3.1 The Customer acknowledges and accepts that Hydroflow shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Hydroflow in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Hydroflow in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Hydroflow; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Customer shall give Hydroflow not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by Hydroflow as a result of the Customer’s failure to comply with this clause.
5. Credit Card Information
5.1 Hydroflow will:
(a) keep the Customer’s personal details, including credit card details for only as long as is deemed necessary by Hydroflow;
(b) not disclose the Customer’s credit card details to any third party;
5.2 The Customer expressly agrees that, if pursuant to this Contract, there are:
(a) any unpaid charges;
(b) other amounts due and outstanding by the Customer;
(c) any equipment (or any part of them) supplied on loan that are lost or damaged.
5.3 Hydroflow is entitled to immediately charge the Customer’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Customer pursuant to the terms of this Contract.
6. Price and Payment
6.1 At Hydroflow’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Hydroflow to the Customer; or
(b) the Price as at the date of Delivery of the Goods according to Hydroflow’s current price list; or
(c) Hydroflow’s 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.
6.2 Hydroflow reserves the right to change the Price:
(a) if a variation to quotation is requested; or
(b) in the event of unforeseen circumstances occurring which are beyond Hydroflow’s control (including, but not limited to, variations in the cost of Goods, labour, materials, freight, foreign exchange rates; inaccurate information provided to Hydroflow).
6.3 Variations will be charged for on the basis of Hydroflow’s quotation, and will be detailed in writing, and shown as variations on Hydroflow’s invoice. The Customer shall be required to respond to any variation submitted by Hydroflow within ten (10) working days. Failure to do so will entitle Hydroflow 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.
6.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Hydroflow, which may be:
(a) on delivery of the Goods;
(b) by way of instalments/progress payments in accordance with Hydroflow’s payment schedule;
(c) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Hydroflow.
6.5 Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and Hydroflow.
6.6 Hydroflow may in its discretion allocate any payment received from the Customer towards any invoice that Hydroflow determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Hydroflow may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Hydroflow, payment will be deemed to be allocated in such manner as preserves the maximum value of Hydroflow’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Hydroflow nor to withhold payment of any invoice because part of that invoice is in dispute.
6.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Hydroflow an amount equal to any GST Hydroflow must pay for any supply by Hydroflow under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Hydroflow’s address; or
(b) Hydroflow (or Hydroflow’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
7.2 At Hydroflow’s sole discretion the cost of Delivery is in addition to the Price.
7.3 Hydroflow 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.
7.4 Any time specified by Hydroflow for Delivery of the Goods is an estimate only and Hydroflow will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that Hydroflow is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then Hydroflow shall be entitled to charge a reasonable fee for redelivery and/or storage.
8.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Hydroflow is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Hydroflow is sufficient evidence of Hydroflow’s rights to receive the insurance proceeds without the need for any person dealing with Hydroflow to make further enquiries.
8.3 If the Customer requests Hydroflow to leave Goods outside Hydroflow’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
8.4 Hydroflow shall be entitled to rely on the accuracy of any information provided by the Customer.
8.5 Any advice, recommendation, information, assistance or service provided by Hydroflow in relation to Goods or Services supplied is given in good faith to the Customer or the Customer’s agent and is based on Hydroflow’s own knowledge and experience and shall be accepted without liability on the part of Hydroflow. Where such advice or recommendations are not acted upon then Hydroflow shall require the Customer or their agent to authorise commencement of the Services in writing. Hydroflow shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
8.6 The Customer acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in Hydroflow‘s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer 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 Hydroflow.
8.7 Hydroflow accepts no liability whatsoever under this Contract for any defect, loss or damage where Goods have not been handled/stored/used/installed in accordance with Hydroflow’s advice, recommendations and/or guidelines.
9.1 The Customer shall ensure that Hydroflow has clear and free access to effect delivery of the Goods. Hydroflow 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 Hydroflow.
10.1 Hydroflow and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Hydroflow all amounts owing to Hydroflow; and
(b) the Customer has met all of its other obligations to Hydroflow.
10.2 Receipt by Hydroflow 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.
10.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 10.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to Hydroflow on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Hydroflow and must pay to Hydroflow the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Hydroflow and must pay or deliver the proceeds to Hydroflow on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Hydroflow and must sell, dispose of or return the resulting product to Hydroflow as it so directs;
(e) the Customer irrevocably authorises Hydroflow to enter any premises where Hydroflow believes the Goods are kept and recover possession of the Goods;
(f) Hydroflow may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Hydroflow; and
(h) Hydroflow may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
11. Personal Property Securities Act 1999 (“PPSA”)
11.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods that have previously been supplied and that will be supplied in the future by Hydroflow to the Customer, and the proceeds from such Goods as listed by Hydroflow to the Customer in invoices rendered from time to time.
11.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Hydroflow may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Hydroflow for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of Hydroflow; and
(d) immediately advise Hydroflow 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.
11.3 Hydroflow and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
11.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
11.5 Unless otherwise agreed to in writing by Hydroflow, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.6 The Customer shall unconditionally ratify any actions taken by Hydroflow under clauses 11.1 to 11.5.
11.7 Subject to any express provisions to the contrary (including those contained in this clause 11), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
12.1 In consideration of Hydroflow agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 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.
12.2 The Customer indemnifies Hydroflow from and against all Hydroflow’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Hydroflow’s rights under this clause.
12.3 The Customer irrevocably appoints Hydroflow and each director of Hydroflow as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Customer’s behalf.
13.1 The Customer shall inspect the Goods on Delivery and shall within thirty (30) days of Delivery (time being of the essence) notify Hydroflow of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Hydroflow an opportunity to inspect the Goods within a reasonable time following Delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Hydroflow has agreed in writing that the Customer is entitled to reject, Hydroflow’s liability is limited to either (at Hydroflow’s discretion) replacing the Goods or repairing the Goods.
13.2 Goods will not be accepted for return other than in accordance with 13.1 above.
14.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 13.1; and
(b) Hydroflow has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within thirty (30) days of the Delivery date; and
(d) Hydroflow will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
14.2 Hydroflow may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
14.3 Subject to clause 13.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
15.1 To the extent permitted by statute, no warranty is given by Hydroflow as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Hydroflow shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
15.2 For Goods not manufactured by Hydroflow, the warranty shall be the current warranty provided by the manufacturer of the Goods. Hydroflow 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.
15.3 The conditions applicable to the warranty given on Goods supplied by Hydroflow are contained on the “Warranty Documentation” that will be supplied with the Goods.
16. Consumer Guarantees Act 1993
16.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Goods by Hydroflow to the Customer.
17. Intellectual Property
17.1 Where Hydroflow has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Hydroflow. Under no circumstances may such designs, drawings and documents be used without the express written approval of Hydroflow.
17.2 The Customer warrants that all designs, specifications or instructions given to Hydroflow will not cause Hydroflow to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Hydroflow against any action taken by a third party against Hydroflow in respect of any such infringement.
17.3 The Customer agrees that Hydroflow may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Hydroflow has created for the Customer.
18. Default and Consequences of Default
18.1 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 Hydroflow’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Customer owes Hydroflow any money the Customer shall indemnify Hydroflow from and against all costs and disbursements incurred by Hydroflow in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Hydroflow’s collection agency costs, and bank dishonour fees).
18.3 Further to any other rights or remedies Hydroflow may have under this Contract, if a Customer has made payment to Hydroflow, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Hydroflow under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
18.4 Without prejudice to Hydroflow’s other remedies at law Hydroflow shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Hydroflow shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Hydroflow becomes overdue, or in Hydroflow’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Hydroflow;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
19.1 Without prejudice to any other remedies Hydroflow may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Hydroflow may suspend or terminate the supply of Goods to the Customer. Hydroflow will not be liable to the Customer for any loss or damage the Customer suffers because Hydroflow has exercised its rights under this clause.
19.2 Hydroflow may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Hydroflow shall repay to the Customer any money paid by the Customer for the Goods. Hydroflow shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Hydroflow as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20.1 All emails, documents, images or other recorded information held or used by Hydroflow is “Personal Information” as defined and referred to in clause 20.3 and therefore considered confidential. Hydroflow 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 as set out in the Act. Hydroflow acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Hydroflow that may result in serious harm to the Customer, Hydroflow will notify the Customer in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Customer by written consent, unless subject to an operation of law.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to Hydroflow in respect of Cookies where the Customer utilises Hydroflow’s website to make enquiries. Hydroflow agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Hydroflow when Hydroflow sends an email to the Customer, so Hydroflow may collect and review that information (“collectively Personal Information”)
20.3 The Customer authorises Hydroflow or Hydroflow’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by Hydroflow from the Customer directly or obtained by Hydroflow from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
20.4 Where the Customer is an individual the authorities under clause 20.3 are authorities or consents for the purposes of the Privacy Act 2020.
20.5 The Customer shall have the right to request (by e-mail) from Hydroflow, a copy of the Personal Information about the Customer retained by Hydroflow and the right to request that Hydroflow correct any incorrect Personal Information.
20.6 Hydroflow will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
20.7 The Customer can make a privacy complaint by contacting Hydroflow via e-mail. Hydroflow will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
21. Service of Notices
21.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
21.2 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.
22.1 If the Customer 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 Hydroflow may have notice of the Trust, the Customer covenants with Hydroflow as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not without consent in writing of Hydroflow (Hydroflow will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
23.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
23.3 Subject to the CGA, Hydroflow shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Hydroflow of these terms and conditions (alternatively Hydroflow’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
23.4 Hydroflow may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
23.5 The Customer cannot licence or assign without the written approval of Hydroflow.
23.6 Hydroflow may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Hydroflow’s sub-contractors without the authority of Hydroflow.
23.7 The Customer agrees that Hydroflow may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Hydroflow to provide Goods to the Customer.
23.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, 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 Customer to make a payment to Hydroflow.
23.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.