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VIP Design - Terms & Conditions

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1.Definitions
1.1 In these Terms, unless the context requires otherwise:

CGA means the Consumer Guarantees Act 1993;
Customer means the party(s) who instructs VIP (together with its executors, personal representatives), or any other person whose instruction for the provision of Design Works is accepted by VIP. If the Customer comprises more than one person, each of those person’s liability and agreement is joint and several. Where the Customer is a trust, the trustees liability shall not be limited to the assets of the trust;
Event of Default means an event where:

the Customer fails to comply with these Terms or any other contract with VIP, and does not remedy that failure within 10 days of receiving notice from VIP advising them of the failure;
the Customer commits an act of bankruptcy;
the Customer’s ownership or effective control is transferred without VIP’s consent;
if the Customer:

becomes insolvent or is unable to pay its debts as they fall due or is deemed or presumed to be so under any law;
makes, or proposes to make, an assignment, arrangement, composition or compromise with, for the benefit of, or affecting its creditors in relation to any of its indebtedness;
a receiver, liquidator, trustee, manager, administrator or statutory or official manager or similar officer is or has been appointed in respect of the Customer or over all or any of the Customer’s assets;

Design Works means all of the design services and tasks (including estimation of design services) requested by the Customer and provided by VIP under these Terms and together with any Services forming part of the supply of the Design Works by VIP;
GST means any amounts levied or charged pursuant to the Goods and Services Tax Act 1985;
VIP means the relevant VIP entity stated in these Terms and its successors and assigns;
Person means a corporation, association, firm, company, trust, partnership or individual;
Project means the Customer’s complete project to construct buildings on the Site in accordance with the Design Works and/or other project details supplied to VIP.
Related Company has the meaning given to it in the Companies Act 1993, and in relation to VIP will include Dyers Road Timber Limited, VIP Frames & Trusses Auckland Limited, VIP Frames & Trusses Limited and each Related Company of VIP, Dyers Road Timber Limited, VIP Frames & Trusses Auckland Limited from time to time (including their subsidiaries) and any other entity and/or person authorised to trade under the name VIP;
Receiver means any person appointed as a receiver or receiver and manager under these Terms or any collateral security;
Secured Indebtedness means all indebtedness, of whatever nature, which the Customer is now or at any subsequent time actually, prospectively or contingently liable to pay to VIP or any Related Company (including, for the purposes of the PPSA, future advances under or in connection with these Terms or any related or ancillary document);
Secured Property has the meaning given in clause 15;
Services means any services performed by VIP (its employees, agents or subcontractors) as part of supplying the Design Works;
Site means the address for which the Design Works are intended to be used as part of the Customer’s Project.
Terms means these Terms, as amended from time to time by VIP in accordance with clause 20.

2.Acceptance and account terms
2.1 Any instructions received by VIP from the Customer for the provision of Design Works and/or the Customer’s acceptance of Design Works provided by VIP shall constitute acceptance of these Terms.
2.2 Where more than one Customer has entered into these Terms, each Customer shall be jointly and severally liable for all payments due to VIP.
2.3 Once accepted these Terms are irrevocable and can only be rescinded by written authorisation of VIP or the manager of VIP. With the exception of the written authorisation of VIP’s manager, VIP’s representatives or agents are not authorised to make or bind VIP to any representations, statements, conditions or agreements.
2.4 Unless otherwise agreed in writing by VIP, these Terms (which supersede any earlier sets of terms appearing in any catalogue, application for credit or elsewhere) shall override any terms or conditions stipulated, incorporated or referred to by the Customer whether in an order or in any negotiations.
2.5 These Terms and the order which they form part and any written terms of contract to which they are attached with the consent of VIP express the entire agreement between VIP and the Customer.
2.6 The Customer is liable for all purchases made in its account name. It is not VIP’s responsibility to confirm authority for the purposes of supplying or delivering Design Services to the Customer or its agents. It is the sole responsibility of the Customer to ensure there is no unauthorised use of its account.
2.7 It is the Customer’s responsibility to ensure every necessary or prudent authorisation (including licences, permits and consents) to undertake the use and construction of the Design Works, have been obtained.
2.8 VIP may at any time withdraw or suspend Services to be provided to the Customer without notice at its sole discretion, and such withdrawal or suspension will not release either the Customer or the Guarantor(s) from any liability to VIP whatsoever.

3.Quotations/estimates and services
3.1 A quotation or estimate will not constitute an offer to provide Design Works to the Customer. No agreement or contract for the supply of Design Works shall exist between VIP and the Customer until a Customer’s instruction for the supply of Design Works has been accepted by VIP (such acceptance of the Customer’s instructions may be made and communicated by VIP in writing, orally or by an overt act of acceptance).
3.2 All quotes, estimates and pricing, unless expressly stated otherwise, are deemed to be estimates only and are based on rates and charges in effect at the date of issue. Any increase in the costs of any items (including change in currency exchange rates) affecting the cost of supply of the Design Works will be added to the price of the Design Works payable by the Customer.
3.3 Quotes and estimates may be subject to such further terms as are expressly set out in the quote or estimate.
3.4 The Customer may cancel the Services to be provided by VIP if the Customer provides reasonable written notice (which may be by email to the email address of an authorised representative of VIP) of such cancellation prior to completion of the Design Works. In these circumstances, VIP will invoice the Customer for the value of the Services provided by VIP to the Customer up until the date of cancellation.
3.5 If the Customer requires a variation to Design Works (including for any changes in measurements or specifications or nature of the services required or as a result of any inaccuracies or misstatements in the information provided to VIP), the Customer acknowledges such variation may result in a delay in delivery of the Design Works or an increase in the price specified.
3.6 The Customer is solely responsible for the accuracy of plans, drawings, specifications and information supplied by (or on behalf of) the Customer upon which a quotation/estimate/order or estimate of Design Works is based. All customary building industry tolerances shall apply to the dimensions and measurements of Design Works unless VIP and the Customer agree otherwise in writing.

4.Pricing and payment
4.1 The price of the Design Works and the hourly rate of VIP will be expressly agreed in writing by VIP.
4.2 Unless stated otherwise in writing, all prices are exclusive of any GST (and other taxes and duties (if any)) payable on the Design Works and such taxes are payable by the Customer in addition to the price.
4.3 VIP may vary its hourly rate pricing from time to time, provided however that VIP shall first notify the Customer within 14 days from the date that the new pricing will be effective. Any variation will be effective from the date specified by VIP and will apply to all Design Works accepted by VIP on or after that date.
4.4 Payment for the Design Works (together with any other amounts owing to VIP) must be made by cash, cheque or electronic funds transfer in cleared funds prior to or upon the Delivery of the Design Works, or unless agreed in writing, within 7 working days following the Delivery of the Design Works to the Customer. Payment for the Design Works is therefore not due after the construction at the Site has been completed.
4.5 If the Project takes considerably longer, then VIP may ask the Customer to make progress payments.
4.6 A Customer may not reduce or withhold payment to VIP if a third party involved in the Project has not completed their obligations to the Customer.
4.7 Any deposit required by VIP will be paid immediately by the Customer upon instruction to VIP to proceed with the Design Works and, unless otherwise specified on the deposit terms, is non-refundable.
4.8 Payment of all monies owing to VIP must be made free of any counterclaim, set-off, deduction or other claim whatsoever. VIP may deduct or withhold any amount (whether by way of set off, counterclaim or other equitable or lawful claim or otherwise) from any money owing by VIP or any Related Company to the Customer or any account whatsoever.
4.9 VIP may allocate any payment made by or on behalf of the Customer to the account and/or payment of any Design Works as it sees fit and the Customer waives any right to receive notification of that allocation.
4.10 If full payment for the Design Works is not made by the due date for payment, the Customer will pay, at VIP’s discretion (and without prejudice to any other rights or remedies it may have), on demand, default interest on the amount outstanding at the rate of 24% per annum (calculated on a daily basis until the account is paid in full) and all expenses and costs (including debt collection agency charges and legal costs on a solicitor and client basis) incurred by or on behalf of VIP recovering or attempting to recover the overdue amount.
4.11 If payment of the Design Works is not made by the due date for payment, VIP reserves the right to suspend any further Design Works for the Customer. If Design Works are suspended, VIP is not obliged to resume services until the amount owing, and any costs incurred in relation to the suspension, are paid in full and VIP has adequate security for future costs. VIP will not be liable to the Customer or any other person for losses arising from suspension of the Design Works.

5.Performance and delivery of design works
5.1 VIP will provide the Design Works in accordance with the reasonable standard of skill, care and diligence generally exercised by the design profession in New Zealand, subject to any financial, physical, time or other constraints imposed by the Customer or reasonably resulting from the nature of the engagement.
5.2 The Customer agrees to provide VIP with a full brief of the Project requirements and objectives, together with full information about the Site and any other information reasonably requested by VIP, and the Customer agrees to work constructively and in good faith with VIP in order to resolve any aspects of the Design Works or the Project, to enable the Design Works to be completed.
5.3 Delivery of Design Works may be made by instalments. Each instalment shall be treated as a separate contract subject to these Terms.
5.4 Any periods of time for Delivery are estimates only and other than liability that cannot be excluded by law, VIP will not be liable for any delay in Delivery, whether or not beyond its control. Late Delivery or failure in delivery of any instalment of the Design Works does not entitle the Customer to cancel any instruction or part instruction or to refuse to accept Delivery. VIP will, where practicable, advise the Customer of any matter that may affect the timely delivery of the Design Works.
5.5 Unless otherwise agreed in writing, delivery of the Design Works will be deemed to be effected upon the transfer of possession of the finalised Design Works to the Customer (or its representative or carrier), which may be at VIP’s premises, or by hand at another premises, or in electronic format.

6.Issues with design works
6.1 The Design Works will be deemed accepted upon Delivery unless the Customer notifies VIP in writing of any errors or discrepancies within 14 days of Delivery, provided VIP is able to review the Design Works to confirm the error or discrepancy. Failure to notify VIP will be considered a waiver by the Customer of any claim it may have against VIP in relation to the Design Works.
6.2 The Customer agrees that if the Design Works were carried out by an independent contractor, the Customer agrees that the Customer is responsible for accepting the accuracy of the Design Works upon Delivery and the Customer shall notify the independent contractor of any errors or discrepancies in the timeframe specified in the independent contractor’s terms and conditions, and the Customer further agrees that VIP has no liability (whether in contract, statute, tort or otherwise arising) for the Design Works provided by the independent contractor and any liability for any error, discrepancy, dispute or claim in relation to the Design Works provided shall be between the Customer and the independent contractor.

7.Variations to design works
7.1 VIP will not make any material change of the Design Works approved by the Customer except with the Customer’s instruction and agreement, or where Site conditions or Project issues require VIP to exercise urgent discretion, and the Customer is notified.
7.2 If VIP is required to undertake variations to the Design Works, VIP will provide reasonable advance notice of variations to the price of the Design Works.
7.3 VIP will notify the Customer if the Design Works need to be delayed or accelerated due to changes in instructions from the Customer, or circumstances beyond VIP’s control, and VIP will be entitled to an additional fee to cover the costs or disruption and additional time incurred.

8.Warranties and limitation of liability
8.1 Where the Customer is a “Consumer” under the CGA and acquires any Design Works, or holds itself out as acquiring Design Works, for the purposes of a “Business” (as those terms are defined in the CGA) then to the fullest extent permissible by law VIP and the Customer agree the CGA and any other applicable consumer law is hereby excluded. Otherwise, where the Customer is a “Consumer” these Terms are to be read subject to the terms of the CGA.
8.2 Subject to clause 8.1, and to any express warranties given by VIP to the Customer in writing, all conditions, warranties, guarantees, descriptions, representations and statements as to fitness or suitability for any purpose, workmanship, tolerance to any conditions, merchantability or otherwise, express or implied, are expressly excluded to the fullest extent permitted by law.
8.3 VIP will not be liable in respect of any Design Works that have been tampered with or modified without VIP’s approval.
8.4 For Design Works that the Customer is entitled to reject (pursuant to clause 6.1) or VIP’s liability for breach of a non-excludable condition, warranty or any other liability, VIP’s liability is limited at VIP’s option to:

Varying the Design Works; or
refunding the price of the Design Works.

8.5 To the fullest extent permitted by law, VIP has no liability (whether statutory, in contract or tort (including negligence), or howsoever) to the Customer or any of its agents or employees for any for any damage, direct loss, indirect loss, economic loss of any kind (including loss of profits and expectation loss), any other loss or costs (including legal and solicitor/client costs) caused or contributed to by VIP or any of its agents or employees in respect of any Design Works or Services provided or any quotation or estimate given.
8.6 VIP shall not be liable to any person other than the Customer, and disclaims responsibility, in tort or otherwise, for any claim, damage, liability, loss or exposure incurred by such person. If the Project to which VIP’s Design Works relate is leased, transferred, sold or otherwise disposed of in whole or in part to other persons, then the Customer warrants that such persons shall be advised in writing that VIP accepts no responsibility in law to them. In the event of breach of this warranty, the Customer, and in the case of a company its directors, shall fully indemnify VIP against any claim by such person, whether such claim is in tort or otherwise.
8.7 The extent of VIP’s liability under these Terms is reduced proportionately to the extent that the Customer and/or any other person, including any third party (whether under the law of contract, tort (including negligence), statute under common law or otherwise) has contributed to the claim, damage, liability, loss or expense. To the maximum extent permitted by law, VIP’s total liability (whether in contract, statute, tort, including negligence, or otherwise arising) for any claim by the Customer, its agents, employees or contractors, or any other person, relating to or arising from the supply of Design Works or any quotation or estimate given shall not exceed the price of the Design Works to which the claim relates.

9.Use of design works
9.1 Unless expressly agreed in writing, the supply of any Design Works to the Customer shall not give the Customer the right to own, use, sell, distribute or duplicate the Design Works, the VIP trademark, copyright, design or any other intellectual property right that belongs to VIP. For the avoidance of doubt, VIP retains the exclusive ownership of the Design Works, the VIP trademark and any associated intellectual property that belongs to VIP.
9.2 The Customer must ensure that:

all Design Works are used with any directions or guidance notes which are provided with the Design Works;
the Design Works are not sold, distributed or duplicated unless expressly agreed by VIP in writing;
all Design Works are used by appropriate agents or contractors;
any staff or agents using or using the Design Works are instructed to comply with sub-clauses (a), (b) and (c) it informs VIP if there is any matter that may affect the Design Works.

9.3 The Customer acknowledges that:

failure to comply with clause 9.3 may invalidate any express warranty given by VIP;
VIP does not warrant or represent the suitability of any good, service, design, person or organisation for the Customer’s use;
the Customer shall be responsible for ensuring that all and any instructions, recommended uses, applications and installations methods are followed and any cautions and/or warnings observed;
where any recommendation or advice has been given by or on behalf of VIP, VIP will not be responsible for the actual implementation of the recommendation or the advice or the actions or performance of any other party.

9.4 The Customer acknowledges that VIP retains the right to use the Design Works for any purpose within VIP’s business activities, including advertising and entering into design competitions or awards and for their use in any material published in connection with promoting those competitions or awards.

10.Goods and/or services supplied by VIP’s related companies
10.1 If a Customer requires any of VIP’s Related Companies to supply goods and/or services to complete the construction of the Design Works and the Customer’s additional building plans (if any), the Customer will be required to enter in to terms and conditions with the relevant VIP Related Company.
10.2 Where VIP has agreed, at the request of the Customer, to provide an estimate of the quantity of materials required in relation to the Design Works and the Customer’s additional building plans (if any):

the Customer is solely responsible for the accuracy of any plans, specifications and other information supplied by (or on behalf of) the Customer;
under no circumstances will VIP be liable for any errors or discrepancies in design or in the quantities estimated (other than errors or discrepancies caused by VIP under these Terms and Conditions);
to the maximum extent permitted by law VIP expressly excludes all warranties, guarantees, representations or conditions as to fitness for purpose, time of completion, standard of workmanship or otherwise (whether or a like nature or not) and whether express or implied by law, trade custom or otherwise;
further terms may apply and will be advised by VIP at the time; and
VIP’s liability for breach of a non-excludable condition or warranty is limited to the price paid for the services.

10.3

11.Site visit
11.1 Where VIP has agreed, at the request of the Customer, to visit the Site, the Customer must:

provide VIP, its agents, employees and subcontractors with suitable access to the Site;
ensure the Site complies with all applicable laws, including those laws relevant to health and safety.

12.Appointment of contractor
12.1 Where an independent consultant is engaged (in consultation with the Customer) to provide the Design Works, the Customer agrees:

to appoint VIP as the Customer’s agent to enter into a contract with the independent consultant for the supply of Design Works on such terms as VIP deems appropriate in its discretion;
that the Customer is responsible for accepting the quality of the Design Works of the independent consultant;
that VIP has no liability (whether in contract, statute, tort or otherwise arising) for the Design Works provided by the independent consultant and any liability for any error, discrepancy, dispute or claim in relation to the Design Works provided shall be between the Customer and the independent consultant;
to fully reimburse VIP for the cost of the independent consultant and VIP is entitled to charge the Customer a handling fee for enabling the Customer to use the Customer’s VIP account for invoicing purposes to pay the independent consultant; and
to indemnify VIP against any loss, cost or liability suffered or incurred by VIP in respect of any claim by a third party made against VIP arising out of its agency appointment under this clause.

13.Ownership and risk
13.1 VIP retains the exclusive ownership of the Design Works. Unless expressly agreed in writing, the supply of any Design Works to the Customer shall not give the Customer the right to own, use, sell, distribute or duplicate the Design Works, the VIP trademark, copyright, design or any other intellectual property right that belongs to VIP.
13.2 The risk of any loss to the Design Works, or the risk of the Design Works becoming out of date due to any cause whatsoever will pass to the Customer on Delivery to the Customer or to a person on the Customer’s behalf. If the Design Works are destroyed prior to risk passing to the Customer, VIP may deliver the Design Works to the Customer again without penalty or compensation to the Customer.

14.Security and Personal Properties Securities Act

15.The Customer:

grants to VIP (unless otherwise agreed in writing by VIP) a security interest in all of the Customer’s present and after acquired personal property (as defined in the PPSA) including the Design Works and including a fixed charge over all the Customer’s real property, wherever situated, as security for the due payment of all Secured Indebtedness, and to secure performance of all obligations owing by the Customer to VIP or any Related Company (such personal property and real property is together the “Secured Property”).

15.2 The Customer undertakes:

to promptly do all things, execute all documents and/or provide any information which VIP or any Related Company may reasonably require to enable VIP or any Related Company to perfect and maintain the perfection of its security interests (including by registration of a financing statement); and
not to consent to or enter into any agreement which permits any supplier or other person to register a security interest in respect of any collateral subject to VIP’s security interest, including (without limitation) the Design Works (whether an accession or otherwise), which ranks in priority to VIP’s rights as first ranking security holder.

15.3 To further secure the Secured Indebtedness, the Customer agrees VIP shall have the right, at its absolute discretion to complete and register a mortgage (in the form of the then current New Zealand Law Society all obligations mortgage) over any interest in any land owned or held by the Customer now or in the future (whether a beneficial or legal interest owned jointly or alone, and as trustee or otherwise) and/or to lodge a caveat against the title to such land and the Customer irrevocably appoints VIP as its attorney for the purposes of executing and registering such mortgage and specifically authorises VIP to lodge a caveat against such land.
15.4 Each security interest created under these Terms is a continuing security, notwithstanding any intermediate payments or settlements of accounts or anything else and is in addition to, and is not to be merged with any other security or guarantee (present or future) expressed or intended to be security for any Secured Indebtedness or any other obligations owing by the Customer to VIP or any Related Company.
15.5 The Customer waives its rights under the PPSA to receive a copy of any verification statement, financing statement or financing change statement (as those terms are defined in the PPSA) and agrees that:

as between VIP and the Customer, the Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 119, 120(2), 121, 125, 126, 127, 129, 131, 132, 133, 134 and 148 of the PPSA;
to the extent permitted by law these Terms exclude any other provisions of the PPSA which may be excluded in VIP’s discretion and which would otherwise confer rights on the Customer; and
where VIP’s has rights in addition to Part 9 of the PPSA, those rights will continue to apply.

15.6 The Customer acknowledges that is has received value as at the date of first delivery of the Design Works and that VIP has not agreed to postpone the time for attachment of the security interest granted to VIP under these Terms.
15.7 The Customer must not:

change its name, address or contact details without providing VIP 30 days prior written notice (which may be by email the address of an authorised VIP representative;
give to VIP a written demand, or allow any other person to give VIP a written demand requiring a financing change statement to be registered; or
lodge a change demand or allow any other person to lodge a change demand, in each case in relation to a financing statement registered by VIP under the PPSA.

15.8 The Customer will, upon demand, pay all VIP’s expenses and legal costs (on a solicitor-client basis) in relation to or in connection with the registration, maintenance and enforcement of VIP’s security interest.

16.Default
16.1 If, at any time and for any reason, an Event of Default occurs, then (without prejudice to any other remedies VIP may have):

VIP may suspend or cancel (in whole or in part) any instruction created under these Terms or any other contract with the Customer by written notice to the Customer;
VIP may delay delivery of any Design Works until the matter is resolved to VIP’s satisfaction;
the Secured Indebtedness will become immediately due and payable;
each security interest created under these Terms will become immediately enforceable;
VIP may at any time appoint in writing one or more Receivers (jointly and/or severally) in respect of any Secured Property who shall be entitled to exercise all rights conferred on VIP under these Terms as well as at law generally and pursuant to the Receiverships Act 1993 and otherwise on such terms considered necessary or expedient by VIP;
VIP or a Receiver may take possession of the Design Works and any other Secured Property and may dispose of them or retain them for the benefit of VIP or any Related Company and for that purpose may . In respect of Secured Property VIP may, in the name of the Customer or otherwise, at any time do anything and exercise any right which the Customer could do or exercise in relation to the Secured Property, including the right to take possession of, demand, collect and get in any Secured Property and deal with it in any way whatsoever including but not limited to disposing of Secured Property, cancelling any contracts, borrowing any money, taking any proceedings in the Customer’s name and settling any disputes or proceedings; and
VIP may suspend all credit payment arrangements offered to the Customer immediately, without notice, until the Event of Default is remedied to VIP’s satisfaction and require future instructions to be paid in cash in full prior to Delivery.

16.2 VIP does not (and will not be deemed to) undertake any of the Customer’s obligations in respect of the Secured Property by virtue of these Terms.
16.3 VIP is not required to marshall, enforce or apply under any security interest, guarantee or other entitlement held by VIP at any time or any money or property that VIP at any time holds or is entitled to hold.
16.4 The remuneration of the Receiver may be fixed by VIP but is payable by the Customer and forms part of the Secured Indebtedness. To the fullest extent permitted by law, a Receiver will be the agent of the Customer and the Customer will be solely responsible for that Receiver’s acts and defaults.
16.5 VIP may remove any Receiver appointed by providing that Receiver with written notice that the Receiver’s appointment has thereby ceased, whereupon the Receiver shall immediately cease to act.
16.6 The Customer irrevocably appoints, and ratifies the actions or omissions of, VIP, each Receiver, each nominee of VIP in whose name any Secured Property is registered and each duly authorised officer or attorney of VIP severally, to be its attorney (Attorney) (with full power to appoint substitutes and to sub-delegate) on behalf of the Customer and in the Customer’s name or otherwise and at its expense to complete, execute and otherwise perfect all assignments, security interests and other agreements and documents, and generally to do all other things which the Attorney may consider necessary or expedient to secure VIP the full benefit of its rights and intended rights under these Terms and any other contract with VIP to secure payment of the Secured Indebtedness and performance of the Customer’s obligations to VIP and any Related Company and any matters incidental thereto.
16.7 A certificate signed by VIP as to an amount due by the Customer shall be conclusive evidence of such for all purposes, including for any proceedings.

17.Security agency
17.1 From the date these Terms take effect, VIP will hold the benefit of all security created hereunder for the benefit of VIP and its Related Companies (and, in such capacity, VIP is the Security Agent). The Customer acknowledges and agrees that VIP may, at any time, appoint a Related Company to serve as the security agent to act on behalf of VIP and its Related Companies and to exercise the rights of VIP and its Related Companies’ rights under these Terms and under any related or ancillary document.
17.2 Provided that the Customer is presented with a certificate from a party purporting to be the security agent which confirms such appointment under clause 17.1 (which will be conclusive proof to the Customer of such appointment), the Customer will not be concerned to enquire whether any instructions have been given to any such security agent by VIP and, as between the Customer and any such security agent, all actions taken by such security agent under these Terms and any related or ancillary document will be deemed to be authorised.

18.Indemnity and guarantee
18.1 The Customer hereby indemnifies VIP, its employees, officers, agents, any Receivers and any Attorney appointed pursuant to clause 15 (Indemnified Parties) against all losses, liabilities, damages, claims, actions costs or expenses (including legal and solicitor/client costs and expenses) which the Indemnified Parties (or any one of them) may incur, of which have been made against any of the Indemnified Party as a result of or in relation to:

any act, omission, default by the Customer or any subsequent purchaser or user of the Design Works;
any breach of the Customer’s obligations under these Terms;
anything done or omitted to be done, or purported to be done or omitted by VIP and/or a Receiver and/or an Attorney in the exercise or purported exercise of its rights under these Terms or conferred by law (and whether or not arising by reason of mistake, oversight, negligence or error of judgment);
any liability, loss or expense arising out of VIP’s security interest in any of the Secured Property, or any act or omission of the Customer in respect of any circumstance which breaches or might breach any environmental law.

19.Privacy
19.1 VIP may at any time collect, hold and use information relating to these Terms for any purpose connected with its business including (but not limited to) direct marketing, debt recovery, credit reporting or assessment, and to register any security interest, including collecting information from, and disclosing information to, Related Companies, external credit reporting agencies, debt collection agencies, trade referees and other third parties. Information disclosed by VIP to credit reporting agencies will be disclosed on the basis that it will be held and used by such agencies to provide credit reporting services. Under the Privacy Act 1993, individuals have rights to access to, and request correction of, their personal information by contacting the VIP store where the Customer holds an account.
19.2 The Customer authorises VIP to collect, hold and use information from any person or entity for any of the above purposes, and for such person or entity to disclose information to VIP, and the Customer further authorises VIP to disclose information to any person or entity for any of the above purposes and such person or entity to collect, hold and use information from VIP.

20.Review of terms
20.1 VIP may vary these Terms at any time by publishing the varied terms on the VIP’s website or such other platforms at the sole discretion of VIP. All instructions for Design Works after the date of the publication of the varied terms will be subject to the variation and the instructions shall be deemed to be an acceptance of such varied Terms.

21.General
21.1 The Customer may not directly or indirectly assign to any person any of its benefits or burdens in respect of the contract created by these Terms. VIP may at any time assign or transfer to any other person (including without limitation to a Related Company, whether or not acting as a security agent or security trustee of the security created under these Terms) all or any part of its rights, remedies and obligations under these Terms and any related or ancillary document without the Customer’s consent.
21.2 Each provision of these Terms survives to the extent unfulfilled, and remains enforceable and does not merge, on performance of another provision.
21.3 No delay or failure to act is a waiver. No waiver is effective unless it is in writing. Any waiver of a breach so given, is not a waiver of any other breach.
21.4 VIP is not liable for any failure or delay in performing an obligation in these Terms if it is due to a cause reasonably beyond its control.
21.5 These Terms and each and any security interest created under it will not be discharged, nor will the obligations of the Customer be affected or restricted in any way whatsoever, by any time, indulgence, waiver or consent given to the Customer or another person.
21.6 Any notice or other communication to the Customer may be served by delivery at the Customer’s physical account address, email address specified by the Customer, or any other address specified by the Customer from time to time for such purposes or the Customer’s usual residential address (if an individual) or otherwise the Customer’s principal place of business or registered office. The Customer acknowledges that unless otherwise agreed, as a matter of course VIP will communicate with the Customer and any other parties by electronic means Such communications can be subject to interception or contain viruses or other defects. VIP does not accept responsibility and will not be liable for any damage or any loss caused in connection with the corruption of an electronic communication. VIP has virus protection software and security protocols in place, however, VIP cannot guarantee that electronic communications will always be free from viruses or other defects and are secure or will be received.
21.7 These Terms will be governed by the laws of New Zealand. The Customer irrevocably agrees to submit to the non-exclusive jurisdiction of the New Zealand courts.
21.8 The illegality, invalidity or unenforceability of a provision of these Terms will not affect the legality, validity or enforceability of another provision.
21.9 Provided the Customer is meeting its obligations to VIP and subject to proof of identity (if requested), the Customer is able to acquire goods from any Related Company of VIP operating a VIP store and charge them to their existing account with the VIP entity.

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