"Acquire" means Acquire.co.nz Limited, its successors and assigns.
"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 Customer does not wish to allow Cookies to operate in the background when using Acquire’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.
"Customer" means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Acquire to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Customer, is a reference to each Customer jointly and severally; and
if the Customer is a partnership, it shall bind each partner jointly and severally; and
if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Customer’s executors, administrators, successors and permitted assigns.
"Goods" means all Goods or Services supplied by Acquire 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).
"Price" means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between Acquire and the Customer in accordance with clause 8 below.
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.
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.
These terms and conditions are meant to be read in conjunction with the terms and conditions posted on Acquire’s website and/or formal purchase agreement. If there are any inconsistencies between the documents then the terms and conditions contained in this document shall prevail.
Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with Acquire and it has been approved with a credit limit established for the account.
In the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, Acquire reserves the right to refuse delivery.
The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Acquire reserves the right to vary the Price with alternative Goods as per clause 8.2, subject to prior confirmation and agreement of both parties. Acquire also reserves the right to halt all Services until such time as Acquire and the Customer agree to such changes. Acquire shall not be liable to the Customer for any loss or damage the Customer suffers due to Acquire exercising its rights under this clause.
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 Customer acknowledges and accepts that Acquire shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
resulting from an inadvertent mistake made by Acquire in the formation and/or administration of this Contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by Acquire 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 Acquire; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
Change in Control
The Customer shall give Acquire 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 Acquire as a result of the Customer’s failure to comply with this clause.
The Customer acknowledges and agrees that:
Acquire does not guarantee the website’s performance;
display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by Acquire;
on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
there are inherent hazards in electronic distribution, and as such Acquire cannot warrant against delays or errors in transmitting data between the Customer and Acquire including orders, and you agree that to the maximum extent permitted by law, Acquire will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by Acquire and/or displayed on the website. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences; and
if the Customer is not the cardholder for any credit card being used to pay for the Goods, Acquire shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
Acquire reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of Acquire’s business, or violated these terms and conditions.
Credit Card Information and Charges
keep the Customer’s personal details, including credit card details for only as long as is deemed necessary by Acquire;
not disclose the Customer’s credit card details to any third party;
The Customer expressly agrees that, if pursuant to this Contract, there are:
any unpaid charges;
other amounts due and outstanding by the Customer;
any equipment (or any part of them) supplied on loan that are lost or damaged;
Acquire is entitled to immediately charge the Customer’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Customer pursuant to the terms of this Contract.
Further to any other rights or remedies Acquire may have under this Contract, if a Customer has made payment to Acquire by credit card, 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 Acquire under this clause, 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.
A one New Zealand Dollar ($1.00) authorisation fee shall be deducted from the Customer’s credit card when processed through Acquire’s system to ensure validity of the Customer’s credit card and subsequently this fee shall clear after a few days.
Distribution of Goods via an Approved Distributor
The Client agrees that until they are authorised as a distributor by Acquire, (and hereinafter the Client shall be referred to as “Distributor” for the purposes of this clause) the Distributor shall not be able to sell the Goods on as a Distributor for Acquire or represent to any third parties that the Distributor is in any way acting for Acquire. Acquire shall not accept responsibility or agree to be bound in any way by any contracts with third parties to whom the Distributor is a party.
At Acquire’s sole discretion the Distributor acknowledges that only approved Distributor’s shall have the authority to accept internet orders via Acquire’s respective website and/or any alternative online auction sites (including, but not limited to, Trademe, Amazon, Ebay etc).
Any default of clauses 7.1 and 7.2 may at Acquire’s sole discretion be subject to immediate and permanent closure of account facilities, with any account balances payable immediately on demand.
Acquire has sole discretion:
on which brands or Goods are made available to any approved Distributor and Acquire does not guarantee continuing supply of any specific brand or Goods; and
over which geographical locations it chooses to supply its Goods and will not be limited by any given number of Distributors in any given location.
Price and Payment
At Acquire’s sole discretion the Price shall be either:
as indicated on any invoice provided by Acquire to the Customer; or
the Price as at the date of Delivery of the Goods according to Acquire’s current Price list; or
Acquire’s quoted Price (subject to clause 8.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
Acquire reserves the right to change the Price:
if a variation to Acquire’s quotation is requested; or
if during the course of the Services, the Goods cease to be available from Acquire’s third party suppliers, then Acquire reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties;
in the event of increases to Acquire in the cost of Goods, labour or materials (including, but not limited to, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges and labour) which are beyond Acquire’s control.
Variations will be charged for on the basis of Acquire’s quotation, and will be detailed in writing, and shown as variations on Acquire’s invoice. The Customer shall be required to respond to any variation submitted by Acquire within ten (10) working days. Failure to do so will entitle Acquire 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 Acquire’s sole discretion a non-refundable deposit may be required.
Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Acquire, which may be:
on or before delivery of the Goods; or
on completion of the Services; or
by way of instalments/progress payments in accordance with Acquire’s payment schedule;
for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Acquire.
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 Acquire.
Acquire may in its discretion allocate any payment received from the Customer towards any invoice that Acquire determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Acquire may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Acquire, payment will be deemed to be allocated in such manner as preserves the maximum value of Acquire’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
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 Acquire nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Acquire an amount equal to any GST Acquire must pay for any supply by Acquire 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.
Delivery of Goods
Delivery (“Delivery”) of the Goods is taken to occur at the time that Acquire (or Acquire’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
At Acquire’s sole discretion the cost of Delivery is in addition to the Price.
Any time specified by Acquire for Delivery of the Goods is an estimate only and Acquire will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that Acquire is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then Acquire shall be entitled to charge a reasonable fee for redelivery and/or storage.
Risk of damage to or loss of the Goods that occurs during shipping; Acquire is responsible should Acquire have selected the carrier and the Customer shall be responsible should the Customer have selected the carrier.
If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Acquire is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Acquire is sufficient evidence of Acquire’s rights to receive the insurance proceeds without the need for any person dealing with Acquire to make further enquiries.
If the Customer requests Acquire to leave Goods outside Acquire’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.
The Customer acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in Acquire’s or 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 Acquire.
The Customer shall ensure that Acquire has clear and free access to effect delivery of the Goods. Acquire shall not be liable for any loss or damage to the Customer’s premises (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Acquire.
Compliance with Laws
The Customer and Acquire shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
Acquire and the Customer agree that ownership of the Goods shall not pass until:
the Customer has paid Acquire all amounts owing to Acquire; and
the Customer has met all of its other obligations to Acquire.
Title to software shall remain with the applicable licensor(s).
Receipt by Acquire 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.
It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 13.1:
the Customer is only a bailee of the Goods and must return the Goods to Acquire on request;
the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Acquire and must pay to Acquire the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
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 Acquire and must pay or deliver the proceeds to Acquire on demand;
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 Acquire and must sell, dispose of or return the resulting product to Acquire as it so directs;
the Customer irrevocably authorises Acquire to enter any premises where Acquire believes the Goods are kept and recover possession of the Goods;
Acquire may recover possession of any Goods in transit whether or not Delivery has occurred;
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 Acquire; and
Acquire may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
Personal Property Securities Act 1999 (“PPSA”)
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
a security interest is taken in all Goods that have previously been supplied and that will be supplied in the future by Acquire to the Customer, and the proceeds from such Goods as listed by Acquire to the Customer in invoices rendered from time to time.
The Customer undertakes to:
sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Acquire may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
indemnify, and upon demand reimburse, Acquire 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;
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 Acquire; and
immediately advise Acquire 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.
Acquire and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Customer 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 Acquire, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Customer shall unconditionally ratify any actions taken by Acquire under clauses 14.1 to 14.5.
Subject to any express provisions to the contrary (including those contained in this clause 14), 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 Acquire 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.
The Customer indemnifies Acquire from and against all Acquire’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Acquire’s rights under this clause.
The Customer irrevocably appoints Acquire and each director of Acquire as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.
Defects and Returns
The Customer shall inspect the Goods on Delivery and shall within five (5) days of Delivery (time being of the essence) notify Acquire of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Acquire 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 fails to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Acquire has agreed in writing that the Customer is entitled to reject, Acquire’s liability is limited to either (at Acquire’s discretion) replacing the Goods or repairing the Goods.
Goods will not be accepted for return other than in accordance with 16.1 above, and provided that:
Acquire has agreed in writing to accept the return of the Goods; and
Acquire will not be liable for Goods which have not been stored or used in a proper manner; and
the Goods are returned:
at the Customer’s cost within fourteen (14) days of the Delivery date;
in the condition in which they were delivered and with all packaging material, brochures, original UPC codes on the manufacturer’s boxes, instruction material and manuals, blank warranty cards, other accessories and documentation provided by the manufacturer in as new condition as is reasonably possible in the circumstances; and
iwith a Return Merchandise Authorisation (RMA) number. The Customer can obtain a RMA number by contacting Acquire on 0800 444 774 or email Acquire’s service department at email@example.com.
Unopened, non-defective software, games, and DVD movies may be returned to Acquire. Acquire will not accept non-defective software, games, or DVDs in any other condition. Acquire will only replace defective software, games and DVDs returned within fourteen (14) days of the ship date. Items will be replaced with the same title only and must be returned in the original packaging with all warranty cards, manuals and any other documentation.
Risk of damage to or loss of return shipments shall be the Customer’s responsibility and the Customer must insure the Goods on or before Delivery.
Acquire may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.
Subject to clause 16.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
The warranty shall be the current warranty provided by the manufacturer of the Goods. Acquire 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.
The conditions applicable to the warranty given on Goods supplied by Acquire are contained on the “Warranty Documentation” that will be supplied with the Goods.
Consumer Guarantees Act 1993
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 Acquire to the Customer.
Where Acquire has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Acquire. Under no circumstances may such designs, drawings and documents be used without the express written approval of Acquire.
The Customer warrants that all designs, specifications or instructions given to Acquire will not cause Acquire to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Acquire against any action taken by a third party against Acquire in respect of any such infringement.
The Customer agrees that Acquire may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Acquire has created for the Customer.
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 Acquire’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Customer owes Acquire any money the Customer shall indemnify Acquire from and against all costs and disbursements incurred by Acquire in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Acquire’s collection agency costs, and bank dishonour fees).
Further to any other rights or remedies Acquire may have under this Contract, if a Customer has made payment to Acquire, 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 Acquire under this clause 20 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.
Without prejudice to Acquire’s other remedies at law Acquire shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Acquire shall, whether or not due for payment, become immediately payable if:
any money payable to Acquire becomes overdue, or in Acquire’s opinion the Customer will be unable to make a payment when it falls due;
the Customer has exceeded any applicable credit limit provided by Acquire;
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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
Without prejudice to any other remedies Acquire may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Acquire may suspend or terminate the supply of Goods to the Customer. Acquire will not be liable to the Customer for any loss or damage the Customer suffers because Acquire has exercised its rights under this clause.
Acquire 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 Acquire shall repay to the Customer any money paid by the Customer for the Goods. Acquire shall not be liable for any loss or damage whatsoever arising from such cancellation.
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 Acquire as a direct result of the cancellation (including, but not limited to, any loss of profits).
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.
All emails, documents, images or other recorded information held or used by Acquire is “Personal Information” as defined and referred to in clause 22.3 and therefore considered confidential. Acquire 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. Acquire acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Acquire that may result in serious harm to the Customer, Acquire 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.
Notwithstanding clause 22.1, privacy limitations will extend to Acquire in respect of Cookies where the Customer utilises Acquire’s website to make enquiries. Acquire 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:
IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to Acquire when Acquire sends an email to the Customer, so Acquire may collect and review that information (“collectively Personal Information”)
The Customer authorises Acquire or Acquire’s agent to:
access, collect, retain and use any information about the Customer;
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
for the purpose of marketing products and services to the Customer.
disclose information about the Customer, whether collected by Acquire from the Customer directly or obtained by Acquire 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.
Where the Customer is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 2020.
The Customer shall have the right to request (by e-mail) from Acquire, a copy of the Personal Information about the Customer retained by Acquire and the right to request that Acquire correct any incorrect Personal Information.
Acquire 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.
The Customer can make a privacy complaint by contacting Acquire via e-mail. Acquire 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.
Service of Notices
Any written notice given under this Contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this Contract;
by sending it by registered post to the address of the other party as stated in this Contract;
if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
if sent by email to the other party’s last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
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 Acquire may have notice of the Trust, the Customer covenants with Acquire as follows:
the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
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;
the Customer will not without consent in writing of Acquire (Acquire will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
the removal, replacement or retirement of the Customer as trustee of the Trust;
any alteration to or variation of the terms of the Trust;
any advancement or distribution of capital of the Trust;
any resettlement of the trust property;
Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
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 Auckland, New Zealand.
Subject to the CGA, Acquire 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 Acquire of these terms and conditions (alternatively Acquire’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
Acquire may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
The Customer cannot licence or assign without the written approval of Acquire.
Acquire 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 Acquire’s sub-contractors without the authority of Acquire.
The Customer agrees that Acquire 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 Acquire to provide Goods to the Customer.
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 Acquire.
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.