Terms & Conditions
The Gelbottle NZ Limited – Terms & Conditions of Trade
1.1 “The Gelbottle NZ” means The Gelbottle NZ Limited, its successors and assigns or any person acting on behalf of and with the authority of The Gelbottle NZ Limited.
1.2 “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting The Gelbottle NZ to provide the Services (including but not limited training courses where agreed), 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 part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Customer’s executors, administrators, successors and permitted assigns.
1.3 “Products” means all Products or Services supplied by The Gelbottle NZ to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Products’ or ‘Services’ shall be interchangeable for the other).
1.4 “Course” shall mean the course provided by The Gelbottle NZ to the Customer, as described on the invoices, applications, enrolment forms or any other forms as provided by The Gelbottle NZ to the Customer, and shall include any training, advice or recommendations.
1.5 “Price” means the Price payable (plus any Goods and Services Tax (GST) where applicable) for the Products as agreed between The Gelbottle NZ and the Customer in accordance with clause 7 below and shall be New Zealand dollars ($NZ) unless otherwise specified. .
1.6 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this agreement, a party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, Customer information and pricing details.
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 Products.
2.2 These terms and conditions:
(a) sets forth the entire and final understanding of the Customer and The Gelbottle NZ pertaining to the subject matter hereof and supersedes all prior arrangement, whether oral or written; and
(b) may only be amended with both parties consent in writing with disclosure via electronic transmission (email) by mutual agreement and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and The Gelbottle NZ.
2.3 The Customer acknowledges that the supply of Products on credit shall not take effect until the Customer has completed a credit application with The Gelbottle NZ’s head office and/or online and it has been approved with a credit limit established for the account.
2.4 The Customer acknowledges and accepts that:
(a) the Customer is responsible for maintaining the confidentiality of their password and account and any activities that occur under the account. Gelbottle shall not be liable to any person for any issues which may arise as a result of any failure by the customer to protect their password or account;
(b) false emails: Gelbottle will never ask the Customer to confirm any account or credit card details via email. If an email is received claiming to be from Gelbottle asking for such information, the Customer should not reply in the first instance but forward this email request to Gelbottle so that the business may advise the relevant authorities.
(c) the supply of Products for accepted orders may be subject to availability and if, for any reason, Products are not or cease to be available, The Gelbottle NZ reserves the right to vary the Price with alternative Products as per clause 7.2;
(d) in the event that the supply of Products request exceeds the Customers credit limit and/or the account exceeds the payment terms, The Gelbottle NZ reserves the right to refuse delivery;
(e) The Gelbottle NZ reserves the right to accept in whole or part any order or to decline any order. Any order or part order not accepted is deemed to be cancelled;
(f) any misuse, misrepresentation or any other action that negatively impacts The Gelbottle NZ’s brand (including but not limited to online sales and/or marketing campaigns) which is deemed to damage and/or tarnish the reputation of The Gelbottle NZ’s brand, may result in The Gelbottle NZ mitigating that damage by refusing the Customer the right to continue to represent The Gelbottle NZ;
(g) any alleged claims of resultant from the use of any supplied Products must be reported to The Gelbottle NZ’s management in writing as soon as reasonable practicable. Gelbottle reserves the right to inspect any items attributed to the claim and have the items tested by an independent laboratory before any public claims, statements or dissemination of information in any format including social media.
2.5 Where The Gelbottle NZ gives advice, recommendations, information, assistance or service to the Customer, or the Customer’s agent, regarding the Products, it is given in good faith and The Gelbottle NZ shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Customer relying on the same.
2.6 All Products supplied by The Gelbottle NZ shall be in accordance with the specifications or descriptions (if any) expressly listed or set out on the website or order. No other specification, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part of or be incorporated by reference into the order.
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. Distribution of Products via Approved Distributors
3.1 The Customer agrees that until they are authorised as a distributor by The Gelbottle NZ, (and hereinafter the Customer shall be referred to as “Distributor” for the purposes of this clause) the Distributor shall not be able to sell the Products on as a Distributor for The Gelbottle NZ or represent to any third parties that the Distributor is in any way acting for The Gelbottle NZ. The Gelbottle NZ 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.
3.2 At The Gelbottle NZ’s sole discretion the Distributor acknowledges that only approved Distributors shall have the authority to accept internet orders via their respective website and/or any alternative online auction sites.
3.3 Orders from a Distributor are accepted on the basis that;
(a) unless otherwise agreed by prior approval between The Gelbottle NZ and the Distributor, Products may only be resold to consumers at retail level and may not be sold at wholesale level or to any other trader that is known or is suspected to be purchasing for resale, and
(b) Products are to be sold for retail or displayed for sale at only the nominated locations advised by the Distributor to The Gelbottle NZ, and
(c) sale of Products by mail order, internet or any other method outside of the traditional display and sell at the approved location is prohibited without prior written consent of The Gelbottle NZ, and
(d) Products are to be displayed, presented and marketed in the manner that is in the best interest of the brand name.
3.4 Any default of clauses 3.1-3.3 may at The Gelbottle NZ’s sole discretion be subject to immediate and permanent closure of account facilities, with any account balances payable immediately on demand.
3.5 The Gelbottle NZ has sole discretion on which brands or Products are made available to any approved Distributor and The Gelbottle NZ does not guarantee continuing supply of any specific brand or Products.
4. Errors and Omissions
4.1 The Customer acknowledges and accepts that The Gelbottle NZ 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 The Gelbottle NZ 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 The Gelbottle NZ in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of The Gelbottle NZ; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
5. Authorised Representative
5.1 The Customer acknowledges that The Gelbottle NZ shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to The Gelbottle NZ, that person shall have the full authority of the Customer to order any Services and/or to request any variation thereto on the Customer’s behalf. The Customer accepts that they will be solely liable to The Gelbottle NZ for all additional costs incurred by The Gelbottle NZ (including The Gelbottle NZ’s profit margin) in providing any Services or variation/s requested thereto by the Customer’s duly authorised representative.
6. Change in Control
6.1 The Customer shall give The Gelbottle NZ 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 The Gelbottle NZ as a result of the Customer’s failure to comply with this clause.
7. Price and Payment
7.1 At The Gelbottle NZ’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by The Gelbottle NZ to the Customer; or
(b) the Price as at the date of delivery of the Products according to The Gelbottle NZ’s current price list; or
(c) The Gelbottle NZ’s quoted Price (subject to clause 7.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2 The Gelbottle NZ reserves the right to change the Price:
(a) if a variation to the Products which are to supplied is requested; or
(b) if during the course of the Services, the Products cease to be available from The Gelbottle NZ’s third party suppliers, then The Gelbottle NZ reserves the right to provide alternative Products, subject to prior confirmation and agreement of both parties; or
(c) in the event of increases to The Gelbottle NZ in the cost of 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) which are beyond The Gelbottle NZ’s control; or
(d) out-of-pocket expenses are payable by the Customer for on-campus days (i.e. flights and accommodation costs, etc.), see clause 10.1(a).
7.3 Variations will be charged for on the basis of The Gelbottle NZ’s quotation, and will be detailed in writing, and shown as variations on The Gelbottle NZ’s invoice. The Customer shall be required to respond to any variation submitted by The Gelbottle NZ within ten (10) working days. Failure to do so will entitle The Gelbottle NZ 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.
7.4 At The Gelbottle NZ’s sole discretion a non-refundable deposit may be required.
7.5 Time for payment for the Products being of the essence, the Price will be payable by the Customer on the date/s determined by The Gelbottle NZ, which may be:
(a) at the time of placing an order for online purchases, dispatch will occur once payment is cleared;
(b) by way of instalments/progress payments in accordance with The Gelbottle NZ’s payment schedule;
(c) 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;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by The Gelbottle NZ.
7.6 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 The Gelbottle NZ.
7.7 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 The Gelbottle NZ nor to withhold payment of any invoice because part of that invoice is in dispute.
7.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
7.9 The Gelbottle NZ and the Customer agree that the Customer’s obligations to The Gelbottle NZ for the provision the Services shall not cease until:
(a) the Customer has paid The Gelbottle NZ all amounts owing to The Gelbottle NZ; and
(b) the Customer has met all other obligations due by the Customer to The Gelbottle NZ in respect of all agreements between Gelbottle and the Customer.
7.10 Receipt by The Gelbottle NZ 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. Until then The Gelbottle NZ’s rights and ownership in respect of the Services, and this agreement, shall continue.
8. Delivery of Products
8.1 At The Gelbottle NZ’s sole discretion the cost of delivery is in addition to the Price for any orders outside of New Zealand. The Gelbottle NZ may, on the Customer’s request, arrange for the Products to be delivered by The Gelbottle NZ (or The Gelbottle NZ’s nominated carrier service) to the Customer’s nominated address even if the Customer is not present at the address.
8.2 At The Gelbottle NZ’s sole discretion the cost of delivery is in addition to the Price.
8.3 The Gelbottle NZ may deliver the Products in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
8.4 Any time specified by The Gelbottle NZ for delivery of the Products is an estimate only and The Gelbottle NZ 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 Products to be delivered at the time and place as was arranged between both parties. In the event that The Gelbottle NZ is unable to supply the Products as agreed solely due to any action or inaction of the Customer, then The Gelbottle NZ shall be entitled to charge a reasonable fee for redelivery and/or storage.
9. On-Line Ordering
9.1 The Customer acknowledges and agrees that:
(a) The Gelbottle NZ does not guarantee the website’s performance;
(b) display on the website does not guarantee the availability of any particular Products; therefore, all orders placed through the website shall be subject to confirmation of acceptance by The Gelbottle NZ
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
(d) subject to screen resolution and colour settings Products supplied may exhibit slight variations of colour, shade and brightness. Colours are chosen at the Customer’s discretion and The Gelbottle NZ shall not be liable in any way whatsoever, where such variations occur from the online display and the actual colour, this does not constitute a returnable Product fault;
(e) there are inherent hazards in electronic distribution, and as such The Gelbottle NZ cannot warrant against delays or errors in transmitting data between the Customer and The Gelbottle NZ including orders, and you agree that to the maximum extent permitted by law, The Gelbottle NZ 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;
(f) when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences;
(g) if the Customer is not the cardholder for any credit card being used to pay for the Products, The Gelbottle NZ shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
9.2 The Gelbottle NZ 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 The Gelbottle NZ’s business, or violated these terms and conditions.
10. Provision of the Course
10.1 The provision and assessment of face-to-face workshops form part of the Course and:
(a) the Customer is required to participate in these practical classes in order to complete the Course. All information relevant to the workshops will be provided prior to the commencement of the Course and unless expressly included in the Price, out-of-pocket expenses are payable by the Customer (as per clause 7.2(d)).
(b) incorporate the relevant occupational health and safety legislation and requirements, as they apply to work practices. Any action by the Customer that jeopardises the health, safety or welfare of others may result in the termination of the Customer’s enrolment in the Course (and any access relating thereto).
10.2 Subject to the other terms and conditions herein, and the full payment of the Price, The Gelbottle NZ grants the Customer a limited, non- transferrable, non-sublicenseable, and revocable right to use the Course. In the event of any failure in payment of the charges, enrolment to the Course will be deemed invalid and The Gelbottle NZ reserve the right to terminate the Customer’s access to the Course as per clause 13.2.
10.3 Irrespective of whether the Customer utilises the Course, or not, The Gelbottle NZ shall not issue a refund of the charges (in whole or in part), unless the Customer is granted such right under any applicable New Zealand legislation.
10.4 Customer support shall be available via email and telephone during standard business hours and such other hours as The Gelbottle NZ may advertise on their website.
11. Course Progress Policy & Procedure
11.1 Gelbottle shall monitor and record the Course progress of the Customer and assess this progress through each compulsory stage via assessments and exams.
11.2 At the conclusion of each stage, The Gelbottle NZ organises the reassessment, where the Customer does not meet the competency requirement of that particular stage. However, a one hundred dollar ($100.00) reassessment fee may apply.
12. Holidays and Special Leave
12.1 Public Holidays are timetabled into the Course, and the Customer can apply for special leave on the basis of illness or bereavement. In the event of this, the Customer’s progress in the Course will be put on hold (for up to a maximum of three (3) months).
13. Suspension or Postponing Commencement of the Course
13.1 The Customer is allowed to defer commencement or suspend studies of the Course on medical grounds (with a doctor's certificate) or other exceptional compassionate circumstances (i.e. bereavement) as per clause 12.1. If the Student subsequently withdraws from the Course altogether, the refund policy applies from the date of receipt of advice.
13.2 Without prejudice to any other remedies The Gelbottle NZ may have:
(a) if at any time the Student is in breach of any obligation (including those relating to payment) under these terms and conditions, The Gelbottle NZ shall be entitled to immediately suspend or terminate the Student’s enrolment in the Course (and any access relating thereto). The Gelbottle NZ will not be liable to the Student for any loss or damage they may suffer because The Gelbottle NZ have exercised their rights under this clause;
(b) and notwithstanding anything else in this agreement, The Gelbottle NZ unreservedly maintain the right, exclusive of procedural fairness, to suspend or terminate the Student’s enrolment in the Course (and any access relating thereto) if, in The Gelbottle NZ subjective opinion, the decision to do so is in the best interests of The Gelbottle NZ or other students.
14.1 Risk of damage to or loss of the Products passes to the Customer on Delivery and the Customer must insure the Products on or before Delivery.
14.2 If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Customer, The Gelbottle NZ is entitled to receive all insurance proceeds payable for the Products. The production of these terms and conditions by The Gelbottle NZ is sufficient evidence of The Gelbottle NZ’s rights to receive the insurance proceeds without the need for any person dealing with The Gelbottle NZ to make further enquiries.
14.3 If the Customer requests The Gelbottle NZ to leave Products outside The Gelbottle NZ’s premises for collection or to delive1r the Products to an unattended location then such Products shall be left at the Customer’s sole risk.
15.1 The Gelbottle NZ and the Customer agree that ownership of the Products shall not pass until: (a) the Customer has paid The Gelbottle NZ all amounts owing to The Gelbottle NZ; and
(b) the Customer has met all of its other obligations to The Gelbottle NZ.
15.2 Receipt by The Gelbottle NZ 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.
15.3 It is further agreed that until ownership of the Products passes to the Customer in accordance with clause 15.1:
(a) the Customer is only a bailee of the Products and must return the Products to The Gelbottle NZ on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Products on trust for The Gelbottle NZ and must pay to The Gelbottle NZ the proceeds of any insurance in the event of the Products being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Products then the Customer must hold the proceeds of any such act on trust for The Gelbottle NZ and must pay or deliver the proceeds to The Gelbottle NZ on demand.
(d) the Customer should not convert or process the Products or intermix them with other Products but if the Customer does so then the Customer holds the resulting product on trust for the benefit of The Gelbottle NZ and must sell, dispose of or return the resulting product to The Gelbottle NZ as it so directs.
(e) the Customer irrevocably authorises The Gelbottle NZ to enter any premises where The Gelbottle NZ believes the Products are kept and recover possession of the Products.
(f) The Gelbottle NZ may recover possession of any Products in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of The Gelbottle NZ.
(h) The Gelbottle NZ may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not passed to the Customer.
16. Personal Property Securities Act 1999 (“PPSA”)
16.1 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 Products and/or collateral (account) – being a monetary obligation of the Customer to The Gelbottle NZ for Services – that have previously been supplied and that will be supplied in the future by The Gelbottle NZ to the Customer.
16.2 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 The Gelbottle NZ may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, The Gelbottle NZ for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Products charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products and/or collateral (account) in favour of a third party without the prior written consent of The Gelbottle NZ; and
(d) immediately advise The Gelbottle NZ of any material change in its business practices of selling the Products which would result in a change in the nature of proceeds derived from such sales.
16.3 The Gelbottle NZ and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
16.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
16.5 Unless otherwise agreed to in writing by The Gelbottle NZ, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
16.6 The Customer shall unconditionally ratify any actions taken by The Gelbottle NZ under clauses 16.1 to 16.5.
17.1 The Customer shall inspect the Products on delivery and shall within forty-eight (48) hours of delivery (time being of the essence) notify The Gelbottle NZ of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford The Gelbottle NZ an opportunity to inspect the Products within a reasonable time following delivery if the Customer believes the Products are defective in any way. If the Customer shall fail to comply with these provisions the Products shall be presumed to be free from any defect or damage. For defective Products, which The Gelbottle NZ has agreed in writing that the Customer is entitled to reject, The Gelbottle NZ’s liability is limited to either (at The Gelbottle NZ’s discretion) replacing the Products or repairing the Products.
17.2 Products will not be accepted for return other than in accordance with 17.1 above, and provided that:
(a) The Gelbottle NZ has agreed in writing to accept the return of the Products; and
(b) the Products are returned at the Customer’s cost within ten (10) days of the delivery date; and
(c) The Gelbottle NZ will not be liable for Products which have not been stored or used in the recommended manner; and
(d) the Products are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
17.3 The Gelbottle NZ will not accept the return of Products (including but not limited to where a Customer has changed their mind) for credit.
17.4 Subject to clause 17.1, non-stocklist items or Products made to the Customer’s specifications are not acceptable for credit or return.
18.1 For Products not manufactured by The Gelbottle NZ, the warranty shall be the current warranty provided by the manufacturer of the Products. The Gelbottle NZ 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 Products.
19. Consumer Guarantees Act 1993
19.1 If the Customer is acquiring Products for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Products by The Gelbottle NZ to the Customer.
20. Intellectual Property
20.1 Where The Gelbottle NZ has designed, drawn or developed Products for the Customer, then the copyright in any designs and drawings and documents shall remain the property of The Gelbottle NZ. Under no circumstances may such designs, drawings and documents be used without the express written approval of The Gelbottle NZ.
20.2 The Customer agrees that The Gelbottle NZ may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Products which The Gelbottle NZ has created for the Customer.
21. Default and Consequences of Default
21.1 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 The Gelbottle NZ’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
21.2 If the Customer owes The Gelbottle NZ any money the Customer shall indemnify The Gelbottle NZ from and against all costs and disbursements incurred by The Gelbottle NZ in recovering the debt (including but not limited to internal administration charges, legal costs on a solicitor and own client basis, The Gelbottle NZ’s collection agency costs, and bank dishonour charges).
21.3 Further to any other rights or remedies The Gelbottle NZ may have under this contract, if a Customer has made payment to The Gelbottle NZ, 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 The Gelbottle NZ under this clause 21 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.
21.4 Without prejudice to The Gelbottle NZ’s other remedies at law The Gelbottle NZ shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to The Gelbottle NZ shall, whether or not due for payment, become immediately payable if:
(a) any money payable to The Gelbottle NZ becomes overdue, or in The Gelbottle NZ’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 The Gelbottle NZ;
(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.
22.1 Without prejudice to any other remedies The Gelbottle NZ may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions The Gelbottle NZ may suspend or terminate the supply of Products to the Customer. The Gelbottle NZ will not be liable to the Customer for any loss or damage the Customer suffers because The Gelbottle NZ has exercised its rights under this clause.
22.2 The Gelbottle NZ may cancel any contract to which these terms and conditions apply or cancel delivery of Products at any time before the Products are delivered by giving written notice to the Customer. On giving such notice The Gelbottle NZ shall repay to the Customer any money paid by the Customer for the Products. The Gelbottle NZ shall not be liable for any loss or damage whatsoever arising from such cancellation.
22.3 In the event that the Customer cancels delivery of Products and/or a scheduled Course, the Customer shall be:
(a) liable for any and all loss incurred (whether direct or indirect) by The Gelbottle NZ as a direct result of the cancellation (including, but not limited to, any loss of profits); and
(b) The Gelbottle NZ shall refund fifty percent (50%) of the charges for a cancellation or withdrawal by the Customer from an enrolled Course, provided the Course has not commenced. No refund on charges shall be made where the Customer cancels the Course once commenced. All applications for a refund of the charges (or any part of the charges) must be made in writing to The Gelbottle NZ’s Accounts Manager.
22.4 Cancellation of orders for Products 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.
23. Privacy Act 1993
23.1 The Customer authorises The Gelbottle NZ or The Gelbottle NZ’s agent to: (a) access, collect, retain and use any information about the Customer;
(i) (including 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 The Gelbottle NZ from the Customer directly or obtained by The Gelbottle NZ 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.
23.2 Where the Customer is an individual the authorities under clause 23.1 are authorities or consents for the purposes of the Privacy Act 1993.
23.3 The Customer shall have the right to request The Gelbottle NZ for a copy of the information about the Customer retained by The Gelbottle NZ and the right to request The Gelbottle NZ to correct any incorrect information about the Customer held by The Gelbottle NZ.
23.4 The Gelbottle NZ uses a managed service via their parent company, therefore, the Customer’s data and personal information is stored on servers domiciled in England and Wales The Gelbottle NZ servers, including data protection and back-up servers, are also hosted by a specialist hosting service provider, located in England and Wales .
24. Service of Notices
24.1 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.
24.2 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.
25.1 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 The Gelbottle NZ may have notice of the Trust, the Customer covenants with The Gelbottle NZ 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 The Gelbottle NZ (The Gelbottle NZ 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.
26. Compliance Laws
26.1 The Gelbottle NZ warrants that Products are manufactured and supplied from their parent company from their registered premises in England, for supply to all Customers. The Products shall meet all safety regulations and standards as defined with such Products and is eminently suitable for public use and thereby compliant with New Zealand Standards.
26.2 The Gelbottle NZ recommends that a patch test be done preferably twenty-four (24) hours prior to the Customer using the Products to ensure that no allergic reaction occurs. Where the Customer decides not to have such a patch test done, The Gelbottle NZ shall not be held responsible for any reaction the Customer may suffer as a result from the use of the Products.
26.3 In conjunction with clause 26.2, the Customer agrees that The Gelbottle NZ shall not be liable for any damage or loss including personal injury, death, sickness, inconvenience, or expense (including loss of income) as a result of The Gelbottle NZ providing the Products.
27.1 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, arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
27.2 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.
27.3 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 Tauranga Courts of New Zealand.
27.4 Notwithstanding clause 27.3 liquidated damages shall not form part of this contract unless otherwise specifically agreed to by both parties in writing.
27.5 The Gelbottle NZ 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 The Gelbottle NZ of these terms and conditions (alternatively The Gelbottle NZ’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Products).
27.6 The Gelbottle NZ may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
27.7 The Customer cannot licence or assign without the written approval of The Gelbottle NZ.
27.8 The Gelbottle NZ 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 The Gelbottle NZ’s sub-contractors without the authority of The Gelbottle NZ.
27.9 The Customer agrees that The Gelbottle NZ may amend these terms and conditions by notifying 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 The Gelbottle NZ to provide Products to the Customer.
27.10 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
27.11 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.