Terms of Trade | Te Pari Products

Terms of Trade AU

1. Definitions

1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.2 “Te Pari” means Te Pari Products Limited, its successors and assigns or any person acting on behalf of and with the authority of Te Pari Products Limited.

1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Te Pari 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

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

1.4 “Goods” means all Goods or Services supplied by Te Pari 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 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using Te Pari’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.

1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Te Pari and the Customer in accordance with clause 5 below.

1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

2. Acceptance

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:

(a) the supply of Goods on credit shall not take effect until the Customer has completed a credit application with Te Pari and it has been approved with a credit limit established for the account; and

(b) in the event that the supply of Goods request exceeds the Customers credit limit and/or the account exceeds the payment terms, Te Pari reserves the right to refuse Delivery; and

(c) 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, Te Pari reserves the right to vary the Price with alternative Goods as per clause 5.2, subject to prior confirmation and agreement of both parties; and

(d) Te Pari also reserves the right to halt all Services until such time as Te Pari and the Customer agree to such changes. Te Pari shall not be liable to the Customer for any loss or damage the Customer suffers due to Te Pari exercising its rights under this clause.

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

2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 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 Te Pari 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 Te Pari 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 Te Pari 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 Te Pari; 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 Te Pari 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, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by Te Pari as a result of the Customer’s failure to comply with this clause.

5. Price and Payment

5.1 At Te Pari’s sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by Te Pari to the Customer; or

(b) the Price as at the date of Delivery of the Goods according to Te Pari’s current price list; or

(c) Te Pari’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2 Te Pari reserves the right to change the Price if a variation to Te Pari’s quotation is requested. Variations will be charged for on the basis of Te Pari’s quotation, and will be detailed in writing, and shown as variations on Te Pari’s invoice. The Customer shall be required to respond to any variation submitted by Te Pari within ten (10) working days. Failure to do so will entitle Te Pari to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

5.3 At Te Pari’s sole discretion, a non-refundable deposit may be required.

5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Te Pari, which may be:

(a) twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;

(b) the date specified on any invoice or other form as being the date for payment; or

(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Te Pari.

5.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and Te Pari.

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

5.7 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 Te Pari nor to withhold payment of any invoice because part of that invoice is in dispute.

5.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Te Pari an amount equal to any GST Te Pari must pay for any supply by Te Pari under this or any other agreement 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.

6. Delivery of Goods

6.1 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 Te Pari’s address; or

(b) Te Pari (or Te Pari’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.

6.2 At Te Pari’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.

6.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

6.4 Any time specified by Te Pari for Delivery of the Goods is an estimate only. The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. Te Pari will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. In the event that the Customer is unable to take Delivery of the Goods as arranged then Te Pari shall be entitled to charge a reasonable fee for redelivery and/or storage.

6.5 Te Pari 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. Product Specifications

7.1 The Customer acknowledges that:

(a) all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in Te Pari’s or the manufacturer’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 Te Pari;

(b) while Te Pari may have provided information or figures to the Customer regarding the performance of the Goods, the Customer acknowledges that Te Pari has given these in good faith, and are estimates based on industry prescribed estimates.

7.2 The Customer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.

8. Accuracy of Customer’s Plans and Measurements

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

8.2 In the event the Customer gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or Te Pari places an order based on these measurements and quantities. Te Pari accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.

9. Risk

9.1 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.

9.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Te Pari is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Te Pari is sufficient evidence of Te Pari’s rights to receive the insurance proceeds without the need for any person dealing with Te Pari to make further enquiries.

9.3 If the Customer requests Te Pari to leave Goods outside Te Pari’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.

9.4 The Customer acknowledges that Goods supplied may:

(a) exhibit variations in shade, tone, colour, texture, surface and finish; and

(b) fade or change colour over time; and

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

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

10. Title

10.1 Te Pari and the Customer agree that ownership of the Goods shall not pass until:

(a) the Customer has paid Te Pari all amounts owing to Te Pari; and

(b) the Customer has met all of its other obligations to Te Pari.

10.2 Receipt by Te Pari 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 Te Pari on request;

(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Te Pari and must pay to Te Pari 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 Te Pari and must pay or deliver the proceeds to Te Pari 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 Te Pari and must sell, dispose of or return the resulting product to Te Pari as it so directs;

(e) the Customer irrevocably authorises Te Pari to enter any premises where Te Pari believes the Goods are kept and recover possession of the Goods;

(f) Te Pari 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 Te Pari;

(h) Te Pari 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 2009 (“PPSA”)

11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

11.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Customer to Te Pari for Services – that have previously been supplied and that will be supplied in the future by Te Pari to the Customer.

11.3 The Customer undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Te Pari may reasonably require to;

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii);

(b) indemnify, and upon demand reimburse, Te Pari for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of Te Pari;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Te Pari;

(e) immediately advise Te Pari 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.

11.4 Te Pari and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

11.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

11.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

11.7 Unless otherwise agreed to in writing by Te Pari, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

11.8 The Customer must unconditionally ratify any actions taken by Te Pari under clauses 11.3 to 11.5.

11.9 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 Te Pari 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, 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).

12.2 The Customer indemnifies Te Pari from and against all Te Pari’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Te Pari’s rights under this clause.

12.3 The Customer irrevocably appoints Te Pari and each director of Te Pari 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. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

13.1 The Customer must inspect the Goods on Delivery and must within thirty (30) days of Delivery notify Te Pari in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Te Pari to inspect the Goods.

13.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

13.3 Te Pari acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Te Pari makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Te Pari’s liability in respect of these warranties is limited to the fullest extent permitted by law.

13.5 If the Customer is a consumer within the meaning of the CCA, Te Pari’s liability is limited to the extent permitted by section 64A of Schedule 2.

13.6 If Te Pari is required to replace the Goods under this clause or the CCA, but is unable to do so, Te Pari may refund any money the Customer has paid for the Goods.

13.7 If the Customer is not a consumer within the meaning of the CCA, Te Pari’s liability for any defect or damage in the Goods is:

(a) limited to the value of any express warranty or warranty card provided to the Customer by Te Pari at Te Pari’s sole discretion;

(b) limited to any warranty to which Te Pari is entitled, if Te Pari did not manufacture the Goods;

13.8 Subject to this clause 13, returns will only be accepted provided that:

(a) the Customer has complied with the provisions of clause 13.1; and

(b) Te Pari has agreed that the Goods are defective; and

(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, Te Pari shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Customer failing to properly maintain or store any Goods;

(b) the Customer using the Goods for any purpose other than that for which they were designed;

(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) the Customer failing to follow any instructions or guidelines provided by Te Pari;

(e) fair wear and tear, any accident, or act of God.

13.10 Te Pari may in its absolute discretion accept non-defective Goods for return in which case Te Pari may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.

13.11 Notwithstanding anything contained in this clause if Te Pari is required by a law to accept a return then Te Pari will only accept a return on the conditions imposed by that law.

13.12 Subject to clause 13.1, customised, or non-stocklist items or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.

14. Intellectual Property

14.1 Where Te Pari has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Te Pari. Under no circumstances may such designs, drawings and documents be used without the express written approval of Te Pari.

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

14.3 The Customer agrees that Te Pari may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Te Pari has created for the Customer.

15. Default and Consequences of Default

15.1 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 Te Pari’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

15.2 If the Customer owes Te Pari any money the Customer shall indemnify Te Pari from and against all costs and disbursements incurred by Te Pari in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Te Pari’s contract default fee, and bank dishonour fees).

15.3 Further to any other rights or remedies Te Pari may have under this Contract, if a Customer has made payment to Te Pari, 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 Te Pari under this clause 15 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.

15.4 Without prejudice to Te Pari’s other remedies at law Te Pari shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Te Pari shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Te Pari becomes overdue, or in Te Pari’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 Te Pari;

(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.

16. Cancellation

16.1 Without prejudice to any other remedies Te Pari may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Te Pari may suspend or terminate the supply of Goods to the Customer. Te Pari will not be liable to the Customer for any loss or damage the Customer suffers because Te Pari has exercised its rights under this clause.

16.2 Te Pari 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 Te Pari shall repay to the Customer any money paid by the Customer for the Goods. Te Pari shall not be liable for any loss or damage whatsoever arising from such cancellation.

16.3 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 Te Pari as a direct result of the cancellation (including, but not limited to, any loss of profits).

16.4 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.

17. Privacy Policy

17.1 All emails, documents, images or other recorded information held or used by Te Pari is Personal Information, as defined and referred to in clause 17.3, and therefore considered Confidential Information. Te Pari acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) 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”). Te Pari acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Te Pari that may result in serious harm to the Customer, Te Pari will notify the Customer 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 Customer by written consent, unless subject to an operation of law.

17.2 Notwithstanding clause 17.1, privacy limitations will extend to Te Pari in respect of Cookies where the Customer utilises Te Pari’s website to make enquiries. Te Pari 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 Te Pari when Te Pari sends an email to the Customer, so Te Pari may collect and review that information (“collectively Personal Information”)

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

17.3 The Customer agrees that Te Pari may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:

(a) to assess an application by the Customer; and/or

(b) to notify other credit providers of a default by the Customer; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.

17.4 The Customer consents to Te Pari being given a consumer credit report to collect overdue payment on commercial credit.

17.5 The Customer agrees that personal credit information provided may be used and retained by Te Pari for the following purposes (and for other agreed purposes or required by):

(a) the provision of Goods; and/or

(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or

(d) enabling the collection of amounts outstanding in relation to the Goods.

17.6 Te Pari may give information about the Customer to a CRB for the following purposes:

(a) to obtain a consumer credit report;

(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.

17.7 The information given to the CRB may include:

(a) Personal Information as outlined in 17.3 above;

(b) name of the credit provider and that Te Pari is a current credit provider to the Customer;

(d) type of consumer credit;

(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);

(f) advice of consumer credit defaults (provided Te Pari is a member of an approved QAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and Te Pari has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of Te Pari, the Customer has committed a serious credit infringement;

(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

17.8 The Customer shall have the right to request (by e-mail) from Te Pari:

(a) a copy of the Personal Information about the Customer retained by Te Pari and the right to request that Te Pari correct any incorrect Personal Information; and

(b) that Te Pari does not disclose any Personal Information about the Customer for the purpose of direct marketing.

17.9 Te Pari 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.

17.10 The Customer can make a privacy complaint by contacting Te Pari via e-mail. Te Pari 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 thirty (30) 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 Information Commissioner at www.oaic.gov.au.

18. Service of Notices

18.1 Any written notice given under this Contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this Contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

18.2 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.

19. Trusts

19.1 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 Te Pari may have notice of the Trust, the Customer covenants with Te Pari 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 Te Pari (Te Pari 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.

20. General

20.1 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.

20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which Te Pari has its principal place of business, and are subject to the jurisdiction of the Melbourne Courts.

20.3 Subject to clause 13, Te Pari 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 Te Pari of these terms and conditions (alternatively Te Pari’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

20.4 Te Pari may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.

20.5 The Customer cannot licence or assign without the written approval of Te Pari.

20.6 Te Pari 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 Te Pari’s sub-contractors without the authority of Te Pari.

20.7 The Customer agrees that Te Pari 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 Te Pari to provide Goods to the Customer.

20.8 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.

20.9 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.