TANZ Incorporated T/A Tile Association Of New Zealand – Terms & Conditions of Trade
1.1 “TANZ” means TANZ Incorporated T/A Tile Association Of New Zealand, its successors and assigns or any person acting on behalf of and with the authority of TANZ Incorporated T/A Tile Association Of New Zealand.
1.2 “Member” means the person/s or any person acting on behalf of and with the authority of the Member requesting TANZ to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Member, is a reference to each Member jointly and severally; and
(b) if the Member is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Member’s executors, administrators, successors and permitted assigns.
1.3 “Supplier” means a third party unrelated to TANZ that supplies and/or provides the Supplier’s goods. TANZ does not sell, hire or supply and/or provide the actual Supplier’s goods.
1.4 “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by TANZ in the course of it conducting, or supplying to the Member, any Services.
1.5 “Services” mean all Services supplied by TANZ to the Member at the Member’s request from time to time.
1.6 “Membership Fees” means the Fees payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between TANZ and the Member in accordance with clause 7 of this Agreement.
1.7 “Agreement” means this contract for Membership, between TANZ and the Member, which both parties agree consists of the entirety of the relationship between the parties, to the complete and unqualified exclusion of any other terms, promises, warranties, representations, or other agreement of any kind in respect to the Services.
1.8 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not Incorporated to, this Agreement, a party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, Member information and pricing details.
2.1 The Member is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Member places an order for, or accepts Services provided by TANZ.
2.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Member and TANZ.
2.3 None of TANZ’s agents or representatives are authorised to make any representations, statements, conditions or Agreement not expressed by the manager of TANZ in writing nor is TANZ bound by any such unauthorised statements.
2.4 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Member acknowledges and accepts that TANZ 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 TANZ in the formation and/or administration of this Agreement; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by TANZ 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 TANZ; the Member shall not be entitled to treat this Agreement as repudiated nor render it invalid.
4.1 Membership is activated when TANZ receives from the Member a completed application form and payment. A receipt will be issued upon receipt of payment for a full twelve (12) month subscription or part thereof as agreed.
4.2 Membership is for one (1) year commencing on the date the Member’s application is accepted or part thereof as agreed.
4.3 Membership will be extended automatically for successive 12 month terms unless the Member sends TANZ written notice that the Member does not want it renewed giving at least thirty (30) days’ notice before the end of the Membership.
4.4 Unless accessing monthly, quarterly or other direct debit facilities, all Membership Fees must be paid annually in advance.
4.5 An invoice will be sent to the Member before the Membership renewal date which is payable prior to your renewal date for membership fees paid annually.
4.6 Membership may be suspended or terminated if the Member’s payment is not received within seven (7) days of the Membership renewal date. In this circumstance, TANZ Incorporated reserves the right to recover the monetary benefit of any Membership discount(s) received by the Member whilst the Member was in arrears.
4.7 There is no refund of any Membership Fees should the Member cancel the Membership at any stage during the Membership year.
4.8 Changes to Membership Fees will only be made at the time of annual renewal of the Membership.
4.9 TANZ reserves the right to change, from time to time, the Services available to Members.
4.10 Upon acceptance of Membership, the Member acknowledges and agrees:
(a) to abide by the TANZ’s code of ethic’s including but not Incorporated to ensuring all accounts with Suppliers are settled within the agreed terms; and
(b) failure to maintain Membership Fees will result in restricted conditions in respect of special pricing with Suppliers, until such time as the Membership Fees due are paid and up to date; and
(c) grants permission for TANZ to negotiate with Suppliers for special discounts for the benefit of Members;
(d) that all information supplied to TANZ for Membership consideration is truthful and accurate. In the event that upon verification, any supplied information be found to be inaccurate or untruthful TANZ reserves the right to reject or cancel the Membership.
4.11 Notwithstanding clause 4.10 TANZ has the final decision to approve, decline, suspend or cancel a Membership of any Member as TANZ see fits in the interest of the association.
5. Membership Period
5.1 Subject to a cooling period of five (5) business days, the Membership Period shall commence, and TANZ shall supply the Member with a Membership card, provided:
(a) the Member has accepted the terms and conditions of this Agreement, as per clause 2.1; and
(b) the Membership and payment requirements have been successfully fulfilled by the Member.
5.2 Upon entering into this Agreement, the Membership Period shall continue on an annual basis, unless terminated in accordance with clause 17.
5.3 Irrespective of whether the Member utilises the Services during the Membership Period, or not, TANZ shall not issue a refund on any Membership Fees, unless the Member is granted such right under the Cooling Off Period provisions or any applicable New Zealand legislation.
6. Change in Control
6.1 The Member shall give TANZ not less than fourteen (14) days prior written notice of any proposed change of ownership of the Member and/or any other change in the Member’s details (including but not Incorporated to, changes in the Member’s name, address, contact phone or fax number/s, or business practice). The Member shall be liable for any loss incurred by TANZ as a result of the Member’s failure to comply with this clause.
7. Membership Fees and Payment
7.1 At TANZ’s sole discretion the Fees shall be TANZ’s current Fees as at the date of commencement of the Membership according to TANZ’s current Membership Fees schedule.
7.2 Time for payment for the Services being of the essence, the Fees will be payable by the Member on the date/s determined by TANZ, which may be:
(a) by way of instalments payments in accordance with TANZ’s payment schedule;
(b) payment for approved Members shall be due twenty (20) days following the end of the month in which a statement is posted to the Member’s address or address for notices;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Member by TANZ.
7.3 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Member and TANZ.
7.4 The Member shall not be entitled to set off against, or deduct from the Fees, any sums owed or claimed to be owed to the Member by TANZ nor to withhold payment of any invoice because part of that invoice is in dispute.
7.5 GST and other taxes and duties that may be applicable shall be added to the Fees except when they are expressly included in the Fees.
7.6 Receipt by TANZ 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, and until then TANZ’s ownership or rights in respect of the Services, and this Agreement, shall continue.
8. Provision of the Services
8.1 Any time specified by TANZ for delivery of the Services is an estimate only and TANZ will not be liable for any loss or damage incurred by the Member as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that TANZ is unable to supply the Services as agreed solely due to any action or inaction of the Member then TANZ shall be entitled to charge reasonable Fee for re-supplying the Services at a later time and date.
9.1 Irrespective of whether TANZ retains ownership of any Incidental Items all risk for such items shall pass to the Member as soon as such items are delivered to the Member and shall remain with the Member until such time as TANZ may repossess the Incidental Items. The Member must insure all Incidental Items on or before delivery.
9.2 TANZ reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Member’s failure to insure in accordance with clause 6.1.
10. Complaints Process
10.1 Any complaint made regarding the Member (or another participant) shall be investigated by TANZ, who may:
(a) contact the Member (or another participant), who is the subject of the complaint. TANZ will not disclose the identity of the complainant;
(b) where the complaint is formally made in writing and is substantiated by evidence capable of sustaining the complaint, require an explanation by the Member (or another participant) in question, which may be communicated to the complainant if it is deemed by TANZ to be reasonably necessary to do so;
(c) at their sole discretion, suspend or cancel any Membership (or any part of the Services), where it is upheld that there has been a breach of this Agreement by the Member (or any other participant).
11.1 If a dispute arises between the parties to this Agreement and/or between any Members, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within seven (7) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such a dispute to be heard by an appointed expert by TANZ Incorporated for mediation for the time being at the request of either party.
11.2 Both parties accept that the Expert shall act as an expert and not an arbitrator and may conduct the resolution of the dispute in such a manner as the Expert determines and may seek assistance of any suitably qualified and experienced person on any matter concerning the dispute.
11.3 Both parties agree to bear all the costs associated with the Expert in equal shares and accept the decision of the Expert will be final and binding on the parties.
12.1 TANZ and the Member agree that where it is intended that the ownership of Incidental Items is to pass to the Member that such ownership shall not pass until:
(a) the Member has paid TANZ all amounts owing for the Services; and
(b) the Member has met all other obligations due by the Member to TANZ in respect of all contracts between TANZ and the Member.
12.2 Receipt by TANZ 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 and until then TANZ’s ownership or rights in respect of the Incidental Items shall continue.
12.3 It is further agreed that:
(a) the Member is only a bailee of the Incidental Items and must return the Incidental Items to TANZ immediately upon request by TANZ;
(b) the Member irrevocably authorises TANZ to enter any premises where TANZ believes the Incidental Items are kept and recover possession of the Incidental Items.
13. Personal Property Securities Act 1999 (“PPSA”)
13.1 Upon assenting to these terms and conditions in writing the Member 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 Incidental Items and/or collateral (account) – being a monetary obligation of the Member to TANZ for Services – that have previously been supplied and that will be supplied in the future by TANZ to the Member.
13.2 The Member 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 TANZ may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, TANZ for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Incidental Items charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items and/or collateral (account) in favour of a third party without the prior written consent of TANZ.
13.3 TANZ and the Member agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
13.4 The Member waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
13.5 Unless otherwise agreed to in writing by TANZ, the Member waives its right to receive a verification statement in accordance with section 148 of the PPSA.
13.6 The Member shall unconditionally ratify any actions taken by TANZ under clauses 13.1 to 13.5.
14. Security and Charge
14.1 In consideration of TANZ agreeing to supply Services, the Member 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 Member either now or in the future, to secure the performance by the Member of its obligations under these terms and conditions (including, but not Incorporated to, the payment of any money).
14.2 The Member indemnifies TANZ from and against all TANZ’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising TANZ’s rights under this clause.
14.3 The Member irrevocably appoints TANZ and each director of TANZ as the Member’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not Incorporated to, signing any document on the Member’s behalf.
15. Intellectual Property
15.1 Where TANZ has designed, drawn or developed Incidental Items for the Member, then the copyright in any Incidental Items shall remain the property of TANZ. Under no circumstances may such designs, drawings and documents be used without the express written approval of TANZ.
15.2 The Member warrants that all designs, specifications or instructions given to TANZ will not cause TANZ to infringe any patent, registered design or trademark in the execution of the Member’s order and the Member agrees to indemnify TANZ against any action taken by a third party against TANZ in respect of any such infringement.
15.3 The Member agrees that TANZ may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which TANZ has created for the Member.
16. Default and Consequences of Default
16.1 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 TANZ’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Member owes TANZ any money the Member shall indemnify TANZ from and against all costs and disbursements incurred by TANZ in recovering the debt (including but not Incorporated to internal administration Fees, legal costs on a solicitor and own client basis, TANZ’s collection agency costs, and bank dishonour Fees).
16.3 Further to any other rights or remedies TANZ may have under this Agreement, if a Member has made payment to TANZ, and the transaction is subsequently reversed, the Member shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by TANZ under this clause 16, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Member’s obligations under this Agreement.
16.4 Without prejudice to TANZ’s other remedies at law TANZ shall be entitled to cancel all or any part of any order of the Member which remains unfulfilled and all amounts owing to TANZ shall, whether or not due for payment, become immediately payable if:
(a) any money payable to TANZ becomes overdue, or in TANZ’s opinion the Member will be unable to make a payment when it falls due;
(b) the Member has exceeded any applicable credit limit provided by TANZ;
(c) the Member 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 Member or any asset of the Member.
17.1 TANZ may cancel any Agreement to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Member. On giving such notice TANZ shall repay to the Member any money paid by the Member for the Services. TANZ shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 The Member may terminate this Agreement:
(a) in accordance with the Cooling Off Period provisions as specified herein; and/or
(b) upon expiry of the Minimum Term by providing TANZ with thirty (30) days written notice of the Member’s intention to discontinue their use of the Membership.
17.3 Upon termination of Membership and payment of all outstanding Membership Fees, the Member must remove TANZ’s insignia from all marketing material, websites, vehicles etc.
17.4 Without prejudice to any other remedies TANZ may have:
(a) if at any time the Member is in breach of any obligation (including those relating to payment) under this Agreement, TANZ shall be entitled to suspend or terminate this Agreement. TANZ will not be liable to the Member for any loss or damage the Member suffers because TANZ has exercised its rights under this clause; and
(b) access to Member entitlements and benefits will cease immediately upon the Member becoming in default of payment; and
(c) and notwithstanding anything else in this Agreement, TANZ unreservedly maintains the right, exclusive of procedural fairness, to suspend or terminate this Agreement if, in the subjective opinion of TANZ, the decision to do so is in the best interests of the Member, TANZ, or other participants.
17.5 Terminated Members are considered to be new Members and will incur a new Member joining fee.
17.6 If TANZ is unable to locate the Member and subscriptions are overdue, TANZ may notify the Member of cancellation of their Membership by writing to the last recorded registered address or email address as deemed appropriate
18. Privacy Act 1993
18.1 The Member authorises TANZ or TANZ’s agent to:
(a) access, collect, retain and use any information about the Member;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Member’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Member.
(b) disclose information about the Member, whether collected by TANZ from the Member directly or obtained by TANZ 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 Member.
18.2 Where the Member is an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.
18.3 The Member shall have the right to request TANZ for a copy of the information about the Member retained by TANZ and the right to request TANZ to correct any incorrect information about the Member held by TANZ.
19.1 Subject to clause 19.2, each party agrees to treat as confidential the other party’s Confidential Information, and agree not to divulge it to any third party, without the other party’s written consent.
19.2 Both parties agree to:
(a) use the Confidential Information of the other party only to the extent required for the purpose it was provided; and
(b) not copy or reproduce any of the Confidential Information of the other party in any way; and
(c) only disclose the other party’s Confidential Information to:
(i) employees and contractors who need access to the information and who have agreed to keep it confidential; and
(ii) its legal advisers and insurance providers if those persons undertake to keep such information confidential.
19.3 Either party must promptly return or destroy all Confidential Information of the other party in its possession or control at the other party’s request, unless required by law to retain it.
19.4 Confidential Information excludes information:
(a) generally available in the public domain (without unauthorised disclosure under this Agreement); or
(b) required by law, any stock exchange or regulatory body to be disclosed; or
(c) received from a third party entitled to disclose it; or
(d) that is independently developed.
19.5 The obligations of this clause 19 shall survive termination or cancellation of this Agreement.
20. Service of Notices
20.1 Any written notice given under this Agreement 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 Agreement;
(c) by sending it by registered post to the address of the other party as stated in this Agreement;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Agreement (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 Member at any time upon or subsequent to entering in to the Agreement is acting in the capacity of trustee of any trust (“Trust”) then whether or not TANZ may have notice of the Trust, the Member covenants with TANZ as follows:
(a) the Agreement extends to all rights of indemnity which the Member now or subsequently may have against the Trust and the trust fund;
(b) the Member has full and complete power and authority under the Trust to enter into the Agreement and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Member against the Trust or the trust fund. The Member 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 Member will not without consent in writing of TANZ (TANZ will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Member 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 Agreement 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.
22.3 If the Member is acquiring Services for the purposes of a trade or business, the Member acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Services by TANZ to the Member.
22.4 TANZ shall be under no liability whatsoever to the Member for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Member arising out of a breach by TANZ of these terms and conditions (alternatively TANZ’s liability shall be Incorporated to damages which under no circumstances shall exceed the Fees of the Services).
22.5 TANZ may licence and/or assign all or any part of its rights and/or obligations under this Agreement without the Member’s consent.
22.6 The Member cannot licence or assign without the written approval of TANZ.
22.7 The Member agrees that TANZ may amend these terms and conditions by notifying the Member in writing. These changes shall be deemed to take effect from the date on which the Member accepts such changes, or otherwise at such time as the Member makes a further request for TANZ to provide Services to the Member.
22.8 Message Boards: TANZ provide Message Boards for the use of TANZ site users. The Message Boards may not be used to promote Websites or any commercial or business activity. TANZ are not responsible for any of the opinions expressed in the Message Boards. By posting a message to the message board the Member agrees to take full legal responsibility and liability for the Member’s comments, including for offensive or defamatory statements.
22.9 Feedback: Feedback is provided for the purpose of facilitating trading between the Members on TANZ’s Website. Feedback provided on other parties must not contain offensive, defamatory, retaliatory or inappropriate language or content. TANZ may remove any feedback that is considered to be offensive, defamatory, retaliatory or inappropriate.
22.10 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.
22.11 Both parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on them.