Health and Safety Worx Limited – Terms & Conditions of Trade
Definitions
“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting H&S Worx to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and: (a) if there is more than one Client, is a reference to each Client jointly and severally; and (b) if the Client is a partnership, it shall bind each partner jointly and severally; and (c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and (d) includes the Client’s executors, administrators, successors and permitted assigns.
“Client Data” means all the unprocessed data supplied and inputted by the Client into the secured access area from time to time in conjunction with the Subscription Services. Such data or information may include but is not limited to, still and moving images, any sound recordings, and personal data.
“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 and pricing details.
“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.
“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 H&S Worx’s 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.
“H&S Worx” means Health and Safety Worx Limited, its successors and assigns.
“Incidental Items” means any goods, documents, designs, drawings, or materials supplied, consumed, created, or deposited incidentally by H&S Worx in the course of it conducting, or supplying to the Client, any Services.
“Price”, “Fee” or “Subscription Fee” means the price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between H&S Worx and the Client in accordance with clause 7 of this Contract.
“Processed Data” means any Client Data that has been processed and incorporates H&S Worx’s intellectual property.
“Services” means all Services supplied by H&S Worx to the Client at the Client’s request from time to time.
“Subscription Services” means the provision of the Services by H&S Worx to the Client via the Client’s secured account area on H&S Worx’s Website.
“Website” means a location which is accessible on the internet through the World Wide Web, and which provides multimedia content via a graphical User Interface.
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 H&S Worx.
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 H&S Worx 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, H&S Worx reserves the right to refuse delivery.
These Terms and Conditions are meant to be read in conjunction with the Subscription Services Agreement and/or the Terms and Conditions posted on H&S Worx’s Website. If there are any inconsistencies between the documents, then the Terms and Conditions contained in this document shall prevail.
The Client acknowledges and agrees that: (a) H&S Worx does not guarantee the Website’s performance or availability of any of its Services; and (b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and (c) there are inherent hazards in electronic distribution and as such H&S Worx cannot warrant against delays or errors in transmitting data between the Client and H&S Worx including orders, and that to the maximum extent permitted by law, H&S Worx will not be liable for any losses which the Client suffers as a result of online ordering not being available or for delays or errors in transmitting orders.
H&S Worx reserves the right to terminate the Client’s order if H&S Worx learns that the Client have provided false or misleading information, interfered with other users or the administration of H&S Worx’s Services, or violated these Terms and Conditions.
H&S Worx will ask pertinent questions to ascertain the Client’s requirements in the preparation, institution, and management of the plan for the Client. The Client shall provide accurate information without embellishment in order to ensure an appropriate level of service and protection. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, H&S Worx accepts no responsibility for any loss, damages, or costs however resulting from the inaccurate information.
In the event that H&S Worx is required to provide the Services urgently, that may require H&S Worx’s staff to work outside normal business hours (including, but not limited to, working through lunch breaks, weekends and/or Public Holidays) then H&S Worx reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between H&S Worx and the Client.
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 H&S Worx 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 H&S Worx 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 H&S Worx 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 H&S Worx; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
Change in Control
The Client shall give H&S Worx 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 H&S Worx as a result of the Client’s failure to comply with this clause.
Credit Card Information
H&S Worx will: (a) keep the Client’s personal details, including credit card details for only as long as is deemed necessary by H&S Worx; (b) not disclose the Client’s credit card details to any third party; (c) not unnecessarily disclose any of the Client’s personal information, except is accordance with the Privacy Act (clause 20) or where required by law.
The Client expressly agrees that, if pursuant to this Contract, there are: (a) any unpaid fees; or (b) other amounts due and outstanding by the Client; H&S Worx is entitled to immediately charge the Client’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 Client pursuant to the terms of this Contract.
Fixed Contract Term
The commencement date shall be the date of the first delivery of the Services, or three (3) months from the date of signing, whichever, is the earlier. Fixed Price contracts shall be for the period (‘initial term”) as agreed between both parties and shall revert to a monthly roll over basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving the required notice as defined in the contract prior to the expiration date of the initial term or any additional term.
The Client acknowledges and accepts that the Price stated will remain fixed for an initial period of twelve (12) months from the date of this Contract and will then be subject to revision based on sixty percent (60%) of the movement in the Consumer Price Index (CPI) and forty percent (40%) of the movement in the Average Weekly Earnings rate published by Statistics New Zealand.
Price and Payment
t H&S Worx’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by H&S Worx to the Client; or (b) the Price as at the date of delivery of the Services according to H&S Worx’s current price list; or (c) as per the Subscription Services Agreement; or (a) H&S Worx’s quoted Price (subject to clause 7.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. Such quotations may be based on an initial fee, estimated monthly work or monthly fee based on an annual contract plus a software access fee based on user numbers.
H&S Worx reserves the right to change the Price: (a) if a variation to the Services originally scheduled is requested; or (b) where additional Services are required due to unforeseen circumstances (including, but not limited to, limitations to accessing the site, delays in receiving required documentation/information, changes to the number of employees, change of industry, etc.) which are only discovered on commencement of the Services; or (c) in the event of increases to H&S Worx in the cost of labour or materials which are beyond H&S Worx’s control.
Variations will be charged for on the basis of H&S Worx’s quotation, and will be detailed in writing, and shown as variations on H&S Worx’s invoice. The Client shall be required to respond to any variation submitted by H&S Worx within ten (10) working days. Failure to do so will entitle H&S Worx 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.
At H&S Worx’s sole discretion a deposit may be required.
Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by H&S Worx, which may be: (a) in advance for the Subscription Services; or (b) by way of instalments/progress payments in accordance with H&S Worx’s payment schedule; (c) the date specified on any invoice or other form as being the date for payment; or (d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by H&S Worx.
Payment may be made by cash, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and H&S Worx.
H&S Worx may in its discretion allocate any payment received from the Client towards any invoice that H&S Worx determines and may do so at the time of receipt or at any time afterwards.
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 H&S Worx nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute then the Client must notify H&S Worx in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as H&S Worx investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in H&S Worx placing the Client’s account into default and subject to default interest in accordance with clause 18.1.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to H&S Worx an amount equal to any GST H&S Worx must pay for any supply by H&S Worx under this or any other agreement for providing H&S Worx’s 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 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.
Provision of the Services
At H&S Worx’s sole discretion delivery of the Services shall take place when the Services are supplied to the Client at the Client’s nominated address.
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.
H&S Worx 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.
Subject to clause 8.5 it is H&S Worx’s responsibility to ensure that the Services start as soon as it is reasonably practicable.
The Services’ commencement date will be extended, and the completion date extended by whatever time is reasonable in the event that H&S Worx claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond H&S Worx’s control, including, but not limited to, any failure by the Client to: (a) make a selection; or (b) have the site ready for the Services; or (c) notify H&S Worx that the site is ready.
The Client shall be responsible for all costs of downloading, set-up, installing, accessing, and using the Services (including, but not limited to, any data charges made by the Client’s network service provider).
In the event the Client requires an employee or sub-contractor of H&S Worx to undertake a site induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction is needed to be undertaken prior to the commencement date then the Client shall be liable to pay H&S Worx’s standard (and/or overtime, if applicable) hourly labour rate.
Any time specified by H&S Worx for delivery of the Services is an estimate only and H&S Worx 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 H&S Worx is unable to supply the Services as agreed solely due to any action or inaction of the Client then H&S Worx shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
Risk
Irrespective of whether H&S Worx retains ownership of any Incidental Items 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 H&S Worx may repossess the Incidental Items.
Where the Client purchases the documentation and/or software access and does not engage H&S Worx to provide ongoing consultation Services, the Client indemnifies H&S Worx from any damages, losses or costs arising from misapplication of the processes and/or documentation.
H&S Worx shall be entitled to rely on the accuracy of any data and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, H&S Worx accepts no responsibility for any loss, damages, or costs however resulting from the inaccurate data or other information.
The Client acknowledges and accepts that any recommendations or programmes provided by H&S Worx is based on the Client Data and any other data or information provided by the Client in any form (including that which the Client enters online).
It shall be the Client’s responsibility to ensure the security and integrity of their computer servers and systems.
The Client accepts that H&S Worx shall not be held liable for any damages, costs or losses where the Client visits any third-party Website that may have a link on the software provided by H&S Worx that may interfere with the application provided by H&S Worx. In addition, the Client is to ensure that any information or data provided to H&S Worx online shall be free of viruses, trojan horses, worms, time bombs or any other software program or routine designed for or capable of interfering with the operation of H&S Worx’s computer system.
Title
H&S Worx and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until: (a) the Client has paid H&S Worx all amounts owing for the Services; and (b) the Client has met all other obligations due by the Client to H&S Worx in respect of all Contracts between H&S Worx and the Client.
Receipt by H&S Worx 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 H&S Worx’s ownership in the Incidental Items or rights in respect of the Services shall continue.
Personal Property Securities Act 1999 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the 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 creates a security interest in: (a) all Incidental Items previously supplied by H&S Worx to the Client; (b) all Incidental Items will be supplied in the future by H&S Worx to the Client and the proceeds from such Incidental Items as listed by H&S Worx to the Client in invoices rendered from time to time; and (c) all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest, or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to H&S Worx for Services – that have previously been provided and that will be provided in the future by H&S Worx to the Client.
The Client undertakes to: (a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which H&S Worx may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; (b) indemnify, and upon demand reimburse, H&S Worx for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Incidental Items charged thereby; (c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items or the proceeds of such Incidental Items in favour of a third party without the prior written consent of H&S Worx.
H&S Worx 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 H&S Worx, 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 H&S Worx under clauses 11.1 to 11.6.
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.
Security and Charge
In consideration of H&S Worx 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 H&S Worx from and against all H&S Worx’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising H&S Worx’s rights under this clause.
The Client irrevocably appoints H&S Worx and each director of H&S Worx as the Client’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 Client’s behalf.
Defective Services
The Client shall inspect the Services on delivery and shall within seven (7) days of delivery notify H&S Worx of any alleged defect, shortage in quantity, errors, omissions, or failure to comply with the description or quote. The Client shall afford H&S Worx 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 H&S Worx has agreed in writing that the Client is entitled to reject, H&S Worx’s liability is limited to either (at H&S Worx’s discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 13.1.
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 H&S Worx to the Client.
Use of Reports and Advice
Any advice that H&S Worx 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 letter of engagement.
Unless H&S Worx gives the Client prior written consent, the advice: (a) 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 (b) may not be relied upon by any other party other than the Client.
H&S Worx is not responsible to any other party other than the Client, who is provided with or obtains a copy of H&S Worx’s advice.
H&S Worx’s 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, H&S Worx 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 H&S Worx’s final advice is the definitive version.
Sometimes circumstances may change after H&S Worx has provided their final advice to the Client. If this happens H&S Worx will not update any final advice it has provided to the Client under these Terms and Conditions. If the Client would like H&S Worx to update their final advice, they must contact H&S Worx and both parties can discuss a suitable term of engagement with the Client.
Intellectual Property and Confidentiality
Where H&S Worx has designed, drawn, Processed Data or developed Incidental Items for the Client, then the copyright in any Incidental Items shall remain the property of H&S Worx. Under no circumstances may such designs, drawings and documents be used without the express written approval of H&S Worx.
The Client may download one copy of any document on any computer and/or portable computer device for non-commercial use, and may print hard copies for non-commercial use.
The Client warrants that all designs, specifications, or instructions given to H&S Worx will not cause H&S Worx to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify H&S Worx against any action taken by a third party against H&S Worx in respect of any such infringement.
The Client agrees that H&S Worx may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which H&S Worx has created for the Client.
Each party agrees to treat all Confidential 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 as per clause 17.
Client Data
The Client warrants that: (a) they have the legal right to supply the Client Data to H&S Worx in connection with the Subscription Services or Services (and that there are no circumstances likely to give rise to breach of any of privacy); (b) the Client Data contains nothing that is defamatory.
H&S Worx will: (a) only make copies of the Client Data to the extent reasonably necessary for the Subscription Services or Services (which includes, but is not limited to, back-up security, disaster recovery and testing of the Client Data); (b) not use, exploit, redistribute, re-disseminate, copy, or store the Client Data other than for the purposes of the Subscription Services or Services; and (c) take reasonable steps to protect the Client Data.
The Client Data remains the property of the Client at all times.
On the termination of the contract or the expiry of the minimum subscription period the following shall apply: (a) the Client shall immediately cease using H&S Worx’s intellectual property and the Subscription Services; (b) where the Client elects for the destruction of the Client Data, H&S Worx will as soon as reasonably practicable, ensure that all the Client Data is deleted from the secured access area of the Website; (c) where the Client elects for the return of the Client Data, the Client must make a written request within ten (10) working days after the date of the termination or expiry of the contract (“the Request”). H&S Worx shall use reasonable efforts to fulfil such a request within twenty (20) working days of the Request provided that: (i) the Client has paid all monthly Subscription Fees and any other monies owed to H&S Worx as at the date of the Request; and (ii) the Client shall pay all the costs and expenses (including, but not limited to, the costs for data extraction, transfer and migration and any compatibility issues with both parties’ technology platforms, hardware or software incurred by H&S Worx in return the Client Data.
Where the Client fails to stipulate either return or destruction of the Client Data within ten (10) working days, H&S Worx may destroy or otherwise dispose of any of the Client Data in H&S Worx’s possession, and the Client shall not have any claim whatsoever after this time.
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 H&S Worx’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes H&S Worx any money the Client shall indemnify H&S Worx from and against all costs and disbursements incurred by H&S Worx in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, H&S Worx’s collection agency costs, and bank dishonour fees).
Further to any other rights or remedies H&S Worx may have under this Contract, if a Client has made payment to H&S Worx, 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 H&S Worx under this clause 18, 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 H&S Worx’s other remedies at law H&S Worx shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to H&S Worx shall, whether or not due for payment, become immediately payable if: (a) any money payable to H&S Worx becomes overdue, or in H&S Worx’s opinion the Client will be unable to make a payment when it falls due; (b) the Client has exceeded any applicable credit limit provided by H&S Worx; (c) 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 (d) 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 H&S Worx may have, if at any time the Client is in breach of any obligation (including those relating to payment, whether or not the payment is due to H&S Worx) H&S Worx may suspend, restrict access to software or cloud based/online Services or terminate the provision of Services to the Client, (this includes, but is not restricted to, withholding domain codes, passwords and , and/or blocking or restricting public and Client access to the Website, or removing the Website from the web completely) and any of its other obligations under the Terms and Conditions. H&S Worx will not be liable to the Client for any loss or damage the Client suffers because H&S Worx has exercised its rights under this clause. 19.2 H&S Worx 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 H&S Worx shall repay to the Client any money paid by the Client for the Services. H&S Worx shall not be liable for any loss or damage whatsoever arising from such cancellation.
All emails, documents, images, or other recorded information held or used by H&S Worx is “Personal Information” as defined and referred to in clause 20.3 and therefore considered confidential. H&S Worx 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”). H&S Worx acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by H&S Worx that may result in serious harm to the Client, H&S Worx 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 20.1, privacy limitations will extend to H&S Worx in respect of Cookies where the Client utilises H&S Worx’s website to make enquiries. H&S Worx agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s: (a) IP address, browser, email client type and other similar details; (b) tracking website usage and traffic; and (c) reports are available to H&S Worx when H&S Worx sends an email to the Client, so H&S Worx may collect and review that information (“collectively Personal Information”) If the Client consents to H&S Worx’s use of Cookies on H&S Worx’s website and later wishes to withdraw that consent, the Client may manage and control H&S Worx’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the website.
The Client authorises H&S Worx or H&S Worx’s agent to: (a) access, collect, retain and use any information about the Client; (i) including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Client’s creditworthiness; or (ii) for the purpose of marketing products and services to the Client. (b) disclose information about the Client, whether collected by H&S Worx from the Client directly or obtained by H&S Worx 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 20.3 are authorities or consents for the purposes of the Privacy Act 2020.
The Client shall have the right to request (by e-mail) from H&S Worx, a copy of the Personal Information about the Client retained by H&S Worx and the right to request that H&S Worx correct any incorrect Personal Information.
H&S Worx 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 H&S Worx via e-mail. H&S Worx 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.
Liability Limitations
The Client agrees that H&S Worx shall not be liable for any damage or loss (including, but not limited to, personal injury, death, property loss, delay, strike, terrorism, bankruptcy, war, inconvenience, or expense occasioned by any act or omission of H&S Worx providing the Services in the event that the Client fails to follow H&S Worx’s instructions and/or recommendations.
The Client agrees to indemnify H&S Worx, its licensees, area licensed provider, partners, associates, employees, contractors and any other person who may be sought to be made liable in excess of the limit of liability described in clause 21.1 in respect of any activity arising from or connected with these terms in respect of any claim of whatever kind, including negligence, that may be made by any person and any costs and expenses that may be incurred by H&S Worx.
Subject to the CGA, H&S Worx 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 H&S Worx of these Terms and Conditions (alternatively H&S Worx’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
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 H&S Worx may have notice of the Trust, the Client covenants with H&S Worx as follows: (a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund; (b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity; (c) the Client will not without consent in writing of H&S Worx (H&S Worx will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events: (i) the removal, replacement or retirement of the Client as trustee of the Trust; (ii) any alteration to or variation of the terms of the Trust; (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.
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 courts of Tauranga, New Zealand.
Neither party shall assign or sub-contract all or any part of their rights and obligations under this contract without the written consent of the other party.
H&S Worx 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 H&S Worx’s sub-contractors without the authority of H&S Worx.
The Client agrees that H&S Worx 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 H&S Worx 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 H&S Worx.
Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
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