TERMS + CONDITIONS
Be My Guest Design Limited T/a Positive Signs + Print - Terms & 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 “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 Positive Signs’ 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.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Positive Signs 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 Positive Signs 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 “Positive Signs” means Be My Guest Design Limited T/A Positive Signs + Print, its successors and assigns.
1.6 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between Positive Signs and the Customer in accordance with clause 5 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 acknowledgesand accepts that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with Positive Signs 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, Positive Signs reserves the right to refuse Delivery.
2.6 Once accepted by the Customer, Positive Signs’ written quotation shall be deemed to interpret correctly the Customer’s instructions, whether written or verbal. Where verbal instructions only are received from the Customer, Positive Signs shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
2.7 Where Positive Signs gives any advice, recommendation, information, assistance or service provided by Positive Signs in relation to Goodss or Services supplied is given in good faith to the Customer, or the Customer’s agent and is based on Positive Signs’ own knowledge and experience and shall be accepted without liability on the part of Positive Signs.
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 Positive Signs 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 Positive Signs 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 Positive Signs 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 Positive Signs; 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 Positive Signs 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 Positive Signs as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At Positive Signs’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Positive Signs to the Customer; or
(b) the Price as at the date of Delivery of the Goods according to Positive Signs’ current price list; or
(c) Positive Signs’ 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 Positive Signs reserves the right to change the Price if a variation to Positive Signs’ quotation is requested, including:
(a) where quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Customer of his original instructions or by the copy being, in Positive Signs’ opinion, poorly prepared, or by the Customer’s requirements being different from those originally submitted or described;
(b) all work carried out whether experimentally or otherwise at the Customer’s request;
(c) any tabulated work and/or foreign language included in the job but not contained in the copy originally submitted;
(d) any fonts, or colour proofs, or artwork, specially bought at the Customer’s request for the Goods;
(e) when style, type or layout is left to Positive Signs’ judgement, and the Customer makes further alterations to the copy;
(f) any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Customer, and deemed necessary by Positive Signs to ensure correctly finished work; or
(g) in the event of increases to Positive Signs in the cost of labour or materials which are beyond Positive Signs’ control.
5.3 Variations will be charged for on the basis of Positive Signs’ quotation, and will be detailed in writing, and shown as variations on Positive Signs’ invoice. The Customer shall be required to respond to any variation submitted by Positive Signs within ten (10) working days. Failure to do so will entitle Positive Signs 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.
5.4 At Positive Signs’ sole discretion a deposit may be required.
5.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Positive Signs, which may be:
(a) on Delivery of the Goods;
(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 Positive Signs.
5.6 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 Positive Signs.
5.7 Positive Signs may in its discretion allocate any payment received from the Customer towards any invoice that Positive Signs determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Positive Signs may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Positive Signs, payment will be deemed to be allocated in such manner as preserves the maximum value of Positive Signs’ Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.8 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 Positive Signs nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Positive Signs an amount equal to any GST Positive Signs must pay for any supply by Positive Signs 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.
6. Samples and Proof Reading
6.1 Positive Signs is under no obligation to provide samples of the Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by Positive Signs to match virtual colours with physical colours, Positive Signs will take no responsibility for any variation between virtual samples and the supplied Goods. Should a physical sample be required, this will be provided on request by the Customer and will be charged for as an extra in accordance with clause 5.2.
6.2 Whilst every care is taken by Positive Signs to carry out the instructions of the Customer, it is the Customer’s responsibility to undertake a final proof reading of the Goods. Positive Signs shall be under no liability whatever for any errors not corrected by the Customer in the final proof reading, and should the Customer’s alterations require additional proofs this shall be invoiced as an extra in accordance with clause 5.2.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that the Customer or the Customer’s nominated carrier takes possession of the Goods at Positive Signs’ address; or
7.2 At Positive Signs’ sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
7.3 Any time specified by Positive Signs 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. Positive Signs 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 Positive Signs shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.4 Positive Signs 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.
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, Positive Signs is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Positive Signs is sufficient evidence of Positive Signs’ rights to receive the insurance proceeds without the need for any person dealing with Positive Signs to make further enquiries.
8.3 If the Customer requests Positive Signs to leave Goods outside Positive Signs’ 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 Positive Signs shall be under no liability whatever to the Customer for any variation (beyond the reasonable control of Positive Signs) in colours between the approved prototype and the finished Goods.
8.5 Where the performance of any contract with the Customer requires Positive Signs to obtain Goods or Services from a third party, the Contract between Positive Signs and the Customer shall incorporate and shall be subject to the conditions of supply of such Goods and Services to Positive Signs, and the Customer shall be liable for the cost in full including Positive Signs’ margin of such Goods or Services.
8.6 While every effort will be taken by Positive Signs to match PMS colours, Positive Signs will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product.
8.7 Positive Signs shall not be held liable for inks wearing off through general wear and tear.
8.8 Where the Customer supplies materials, adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received unless requested by the Customer in writing. An additional charge may be made by Positive Signs in respect of any such counting or checking requested by the Customer.
8.9 In the event that materials or equipment are supplied by the Customer for the provision of Services Positive Signs shall accept no liability for imperfect work caused by defects in, or the unsuitability of, such materials or equipment for the Services.
8.10 It shall be the Customer’s responsibility to provide accurate font, pantone and other applicable information where required.
9. Customer Content
9.1 The Customer acknowledges and accepts that any content/materials supplied to Positive Signs is subject to the approval of Positive Signs and may, regardless of prior approval, be rejected and removed by Positive Signs.
9.2 The Customer warrants that all content/materials supplied to Positive Signs to be used for the supply of the Goods shall:
(a) be true and correct in every particular;
(b) does not contain Prohibited Content;
(c) be non-political and non-religious by nature, and suitable for viewer of all ages;
(d) not be, nor contain, anything that is defamatory of any person or is indecent or obscene;
(e) complies with all laws, regulations, codes of practice, guidelines and any standards applicable to the advertising industry and as determined by any relevant regulatory agency or industry self-regulatory body (including, but not limited to, the Fair Trading Act 1986, and the Advertising Code of Ethics and Advertising Standards Authority (ASA));
(f) does not infringe copyright, trademark or any other legal rights of another person and/or entity;
(g) does not contain anything which may give rise to any cause of action by a third against Positive Signs (including, but not limited to, material that may cause damage or injury to any person and/or entity);
(h) is not false or misleading and is true in substance and in fact; and
(i) not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Fair Trading Act 1986 or any other applicable legislation.
9.3 The Customer acknowledges and agrees that Positive Signs shall not be held responsible or liable for any loss, corruption, or deletion of files or data resulting from Services provided by Positive Signs. It is the sole responsibility of the Customer to back-up any data which they believe to be important, valuable, or irreplaceable prior to Positive Signs providing the Services.
9.4 The Customer shall indemnify, and keep indemnified, Positive Signs at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against Positive Signs, or incurred or become payable by Positive Signs, resulting or arising from the Customer being in breach of clause 9.2.
9.5 Positive Signs reserves the right to refuse to accept any Copy submitted by the Customer that does not comply with clause 9.2.
9.6 In the case of property and materials left with Positive Signs without specific instructions or for an extended period of time, Positive Signs shall:
(a) not be liable for any damages to the Customer’s property or materials, unless due to the negligence of Positive Signs; or
(b) be free to dispose of them at the end of twelve (12) months after receiving them and to accept and retain any proceeds gained from such disposal to cover Positive Signs’ costs in holding and handling such items.
10.1 Positive Signs and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Positive Signs all amounts owing to Positive Signs; and
(b) the Customer has met all of its other obligations to Positive Signs.
10.2 Receipt by Positive Signs 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 Positive Signs on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Positive Signs and must pay to Positive Signs 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 Positive Signs and must pay or deliver the proceeds to Positive Signs 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 Positive Signs and must sell, dispose of or return the resulting product to Positive Signs as it so directs;
(e) the Customer irrevocably authorises Positive Signs to enter any premises where Positive Signs believes the Goods are kept and recover possession of the Goods;
(f) Positive Signs 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 Positive Signs; and
(h) Positive Signs 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 Positive Signs to the Customer, and the proceeds from such Goods.
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 Positive Signs may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Positive Signs 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 Positive Signs; and
(d) immediately advise Positive Signs 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 Positive Signs 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 Positive Signs, 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 Positive Signs 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 Positive Signs 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 Positive Signs from and against all Positive Signs’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Positive Signs’ rights under this clause.
12.3 The Customer irrevocably appoints Positive Signs and each director of Positive Signs 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 and Returns
13.1 The Customer shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify Positive Signs of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Positive Signs 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 Positive Signs has agreed in writing that the Customer is entitled to reject, Positive Signs’ liability is limited to either (at Positive Signs’ 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.
13.3 Subject to clause 13.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
14.1 Subject to the conditions of warranty set out in clause 14.2 Positive Signs warrants that if any defect in any Goods manufactured or Services provided by Positive Signs becomes apparent and is reported to Positive Signs within twelve (12) months of the date of Delivery (time being of the essence) then Positive Signs will either (at Positive Signs’ sole discretion) replace or remedy the defect.
14.2 The conditions applicable to the warranty given by clause 14.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods or serviced item; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by Positive Signs; or
(iii) any use of any Goods or serviced item otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods or serviced item after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Positive Signs shall thereafter in no circumstances be liable under the terms of the warranty if the defect is repaired, altered or overhauled without Positive Signs’ consent.
(c) in respect of all claims Positive Signs shall not be liable to compensate the Customer for any delay in either replacing or remedying the defective Goods or Services or in properly assessing the Customer’s claim.
14.3 For Goods not manufactured by Positive Signs, the warranty shall be the current warranty provided by the manufacturer of the Goods. Positive Signs 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. Consumer Guarantees Act 1993
15.1 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 Positive Signs to the Customer.
16. Intellectual Property
16.1 Where Positive Signs has designed, drawn or developed Goods for the Customer, then the copyright in any Goods shall remain the property of Positive Signs, and the Customer undertakes to acknowledge Positive Signs’ design or drawings in the event that images of the Goods are utilised in advertising or marketing material by the Customer.
16.2 Drawings, sketches, painting, photographs, designs or typesetting furnished by the Positive Signs, dummies, models or the like devices made or procured and manipulated by Positive Signs, and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from Positive Signs’ original design, or from a design furnished by the Customer, remain the exclusive property of Positive Signs, unless otherwise agreed upon in writing.
16.3 Sketches and dummies submitted by Positive Signs on a speculative basis shall remain the property of Positive Signs. They shall not be used for any purpose other than that nominated by Positive Signs and no ideas obtained there from may be used without the consent of Positive Signs, and Positive Signs shall be entitled to compensation from the Customer for any unauthorised use of such sketches and dummies.
16.4 The Customer warrants that all designs, specifications, images or instructions given to Positive Signs will not cause Positive Signs to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Positive Signs against any action taken by a third party against Positive Signs in respect of any such infringement.
16.5 The Customer agrees that Positive Signs may (at no cost) use for the purposes of marketing or entry into any competition, any Goods which Positive Signs has created for the Customer.
17. Default and Consequences of Default
17.1 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 Positive Signs’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Customer owes Positive Signs any money the Customer shall indemnify Positive Signs from and against all costs and disbursements incurred by Positive Signs in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Positive Signs’ collection agency costs, and bank dishonour fees).
17.3 Further to any other rights or remedies Positive Signs may have under this Contract, if a Customer has made payment to Positive Signs, 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 Positive Signs under this clause 17 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.
17.4 Without prejudice to Positive Signs’ other remedies at law Positive Signs shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Positive Signs shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Positive Signs becomes overdue, or in Positive Signs’ 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 Positive Signs;
(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.
18.1 Without prejudice to any other remedies Positive Signs may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Positive Signs may suspend or terminate the supply of Goods to the Customer. Positive Signs will not be liable to the Customer for any loss or damage the Customer suffers because Positive Signs has exercised its rights under this clause.
18.2 Positive Signs 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 Positive Signs shall repay to the Customer any money paid by the Customer for the Goods. Positive Signs shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 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 Positive Signs as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.4 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.
19.1 All emails, documents, images or other recorded information held or used by Positive Signs is “Personal Information” as defined and referred to in clause 19.3 and therefore considered confidential. Positive Signs 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. Positive Signs acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Positive Signs that may result in serious harm to the Customer, Positive Signs 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.
19.2 Notwithstanding clause 19.1, privacy limitations will extend to Positive Signs in respect of Cookies where the Customer utilises Positive Signs’ website to make enquiries. Positive Signs 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 Positive Signs when Positive Signs sends an email to the Customer, so Positive Signs may collect and review that information (“collectively Personal Information”)
19.3 The Customer authorises Positive Signs or Positive Signs’ 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 Positive Signs from the Customer directly or obtained by Positive Signs 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.
19.4 Where the Customer is an individual the authorities under clause 19.3 are authorities or consents for the purposes of the Privacy Act 2020.
19.5 The Customer shall have the right to request (by e-mail) from Positive Signs, a copy of the Personal Information about the Customer retained by Positive Signs and the right to request that Positive Signs correct any incorrect Personal Information.
19.6 Positive Signs 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.
19.7 The Customer can make a privacy complaint by contacting Positive Signs via e-mail. Positive Signs 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.
20. Service of Notices
20.1 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.
20.2 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.
21.1 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 Positive Signs may have notice of the Trust, the Customer covenants with Positive Signs 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 Positive Signs (Positive Signs 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.
22.1 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.
22.2 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 Dunedin Courts of New Zealand.
22.3 Subject to the CGA, Positive Signs 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 Positive Signs of these terms and conditions (alternatively Positive Signs’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4 Positive Signs may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
22.5 The Customer cannot licence or assign without the written approval of Positive Signs.
22.6 Positive Signs 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 Positive Signs’ sub-contractors without the authority of Positive Signs.
22.7 The Customer agrees that Positive Signs 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 Positive Signs to provide Goods to the Customer.
22.8 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 Positive Signs.
22.9 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.