Notwithstanding clause 22.1, privacy limitations will extend to Aquaflow in respect of Cookies where the Client utilises Aquaflow’s website to make enquiries. Aquaflow agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

IP address, browser, email client type and other similar details; tracking website usage and traffic; and reports are available to Aquaflow when Aquaflow sends an email to the Client, so Aquaflow may collect and review that information (“collectively Personal Information”)

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

The Client authorises Aquaflow or Aquaflow’s agent to: access, collect, retain and use any information about the Client; (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or for the purpose of marketing products and services to the Client. disclose information about the Client, whether collected by Aquaflow from the Client directly or obtained by Aquaflow from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.

Where the Client is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 1993 and 2020.

The Client shall have the right to request (by e-mail) from Aquaflow, a copy of the Personal Information about the Client retained by Aquaflow and the right to request that Aquaflow correct any incorrect Personal Information.

Aquaflow will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

The Client can make a privacy complaint by contacting Aquaflow via e-mail. Aquaflow will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

Suspension of Works

Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:

Aquaflow has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:

the payment is not paid in full by the due date for payment in accordance with clause 7.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Client; or

a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or the Client has not complied with an adjudicator’s notice that the Client must pay an amount to Aquaflow by a particular date; and Aquaflow has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract. if Aquaflow suspends work, it: is not in breach of Contract; and is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and is entitled to an extension of time to complete the Contract; and keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with. if Aquaflow exercises the right to suspend work, the exercise of that right does not: affect any rights that would otherwise have been available to Aquaflow under the Contract and Commercial Law Act 2017; or enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of Aquaflow suspending work under this provision; due to any act or omission by the Client, the Client effectively precludes Aquaflow from continuing the Works or performing or complying with Aquaflow’s obligations under this Contract, then without prejudice to Aquaflow’s other rights and remedies, Aquaflow may suspend the Works immediately after serving on the Client a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by Aquaflow as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.

If pursuant to any right conferred by this Contract, Aquaflow suspends the Works and the default that led to that suspension continues un-remedied subject to clause 21.1 for at least ten (10) working days, Aquaflow shall be entitled to terminate the Contract, in accordance with clause 21.

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.

Trusts

If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Aquaflow may have notice of the Trust, the Client covenants with Aquaflow as follows:

the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund; the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity; the Client will not without consent in writing of Aquaflow (Aquaflow will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events: the removal, replacement or retirement of the Client 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; or any resettlement of the trust property.

General

Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with section 26 of the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).

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 Nelson, New Zealand.

Subject to the CGA, Aquaflow shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Aquaflow of these terms and conditions (alternatively Aquaflow’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

Aquaflow may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

The Client cannot licence or assign without the written approval of Aquaflow.

Aquaflow may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Aquaflow’s sub-contractors without the authority of Aquaflow.

The Client agrees that Aquaflow may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Aquaflow to provide Works to the Client.

Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to Aquaflow.

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.