Terms and Conditions

TERMS AND CONDITIONS OF TRADE

1. Definitions

In these terms of trade:

“Account” means the Customer’s account with the Vendor.

“Customer” means the person or entity making the application or any person

acting with ostensible authority on behalf of the Customer.

“Goods” means goods supplied by the Vendor to the Customer at any time.

“Guarantor” means any party executing a Guarantee of the Customer's Account

with the Vendor.

“Order” or “Orders” means the order or orders of the Customer to the Vendor to

supply Goods and Services.

"PPSA" means the Personal Property Securities Act 1999.

“Services” means services supplied by the Vendor to the Customer at any time.

“Vendor” means Neumann Plumbing Limited t/a Neuservice Plumbing.

2. Orders

Orders will be on such forms as the Vendor may require from time to time.

3. Acceptance

Each Order shall constitute acceptance by the Customer of these Terms and

Conditions of Trade.

4. Prices

Prices are subject to change without notice. All Orders will be charged at prices

prevailing at the date of delivery of the Goods and Services.

5. Delivery

Where the Order makes provision for delivery then delivery shall take place at the

place stated in the Order. If no place is indicated then delivery shall be made at

the physical address of the Customer set out in the application.

6. Access for Installation and Provision of Services

(a) The Customer shall provide for the purposes of installation and provision

of Services at no cost to the Vendor, all necessary facilities including

power, lighting, unloading, hoisting and lifting facilities, labour, site

preparation and employee amenities which comply with the statutory

requirements.

(b) Upon the Vendor delivering Goods or providing Services the Customer

shall ensure adequate safe storage facilities are provided for protection

against theft and damage of the Goods or any equipment or other items

belonging to the Vendor at no cost to the Vendor.

(c) The Customer acknowledges that it solely shall be responsible for

arranging and providing convenient access for the Goods and provision

of Services to the proposed place of installation including but not limited

to access thereto by way of stairs, lift or crane as the case may require.

(d) If the Customer fails to supply convenient access as aforesaid for any

reason then the Vendor may make a further charge to the Customer to

cover the additional costs it incurs arising from such failure as the

Vendor considers reasonable.

(e) If the Customer is not in a position to accept or take delivery of the

Goods or accept provision of the Services as scheduled the Customer

shall be responsible for all additional charges caused thereby.

(f) Where installation or supply of the Goods or provision of the Services is

required of the Vendor by the Customer and installation or supply is

required to be co-ordinated with other trades the Customer shall provide

the Vendor with a schedule detailing all relevant information relating to

installation or supply with sufficient time allowed for the Vendor to meet

delivery or supply dates.

(g) The delivery or supply period shall be extended to cover delays caused

by strikes, lockouts, prohibitions, non-availability of materials or any

circumstances beyond the Vendor's control.

7. Health and Safety in Employment Act 1992

The Vendor shall be responsible for the actions of its employees in terms of section

15 of the Health and Safety in Employment Act 1992 ("HSEA"). The Customer

shall be responsible for compliance with the HSEA in respect of the Customer's site

and shall advise the Vendor prior to commencement of any work of any hazards on

the Customer's site.

8. Time of Performances

Time shall in no case be of the essence in respect of the delivery of Goods or the

provision of Services. The Vendor shall not be responsible for any delay in the

delivery of Goods or the provision of Services and the Customer shall not be

entitled to cancel orders because of any such delay. Dates for delivery of Goods

and provision of Services are given in good faith and are not to be treated as a

condition of sale or purchase. Delivery of Goods by the Vendor to a carrier is

deemed to be delivery to the Customer.

9. Terms of Payment

(a) Unless otherwise specified, payment for all Goods and Services shall be made

no later than:

(i) on completion of supply for domestic Customers;

(ii) the 7th day following supply for non account commercial Customers;

(iii) the 20th day of the month following supply for account commercial

Customers.

(b) Progress Payments claimed under the Construction Contracts Act 2002 shall

be made no later than 20 days after a payment claim is served on the

Customer.

(c) The Vendor may, at its sole discretion, require payment of a deposit by the

Customer prior to processing any Order.

(d) An administration fee may be charged on all overdue amounts in addition to

any other charges pursuant to this clause.

(e) Interest will accrue on all amounts overdue at the rate of 2.5% per month

and will be calculated on a day by day basis until payment is made in full.

(f) All costs of or incurred by the Vendor as a result of a default by the Customer

including but not limited to administration charges, debt collection costs and

legal costs as between solicitor and client shall be payable by the Customer.

(g) If the Customer defaults in any payment or commits any act of bankruptcy or

any act which would render it liable to be wound up or if a resolution is

passed or proceedings are filed for the winding up of the Customer or if a

receiver is appointed for all or any assets of the Customer, the Vendor may

cancel any Order without prejudice to any other rights it may have and

payment for all completed Orders shall immediately become due.

10. Quotation

Where a quotation is given by the Vendor for the supply of Goods and Services:

(a) unless otherwise agreed the quotation shall be valid for thirty (30) days from

the date of issue;

(b) the quotation shall be exclusive of Goods and Services Tax unless specifically

stated to the contrary.

11. Taxes and Duties

Unless expressly included in any quotation given by the Vendor, Goods and

Services Tax and other taxes and duties assessed or levies in connection with the

supply of the Goods and Services to the Customer are not included in the price and

shall be the responsibility of the Customer or, where the payment of such taxes or

duties is the responsibility of the Vendor at law, the price shall be increased by the

amount of such taxes or duties.

12. Payment Allocation

The Vendor may in its discretion allocate any payment received from the Customer

towards any invoice that the Vendor determines and may do so at the time of

receipt or at any time afterwards. On any default by the Customer the Vendor

may re-allocate any payments previously received and allocated. In the absence

of any payment allocation by the Vendor, payment shall be deemed to be allocated

in such manner as preserves the maximum value of the Vendor's purchase money

security interest in the products.

13. Errors or Omissions

Clerical errors or omissions, whether in computation or otherwise in the quotation,

acknowledgement or invoice shall be subject to correction.

14. Risk

From the time of dispatch to the Customer by the Vendor, risk in all Goods

supplied shall pass to the Customer and any loss, damage or deterioration to the

Goods shall be borne by the Customer. The Customer shall notwithstanding any

loss, damage or deterioration to the Goods remain liable to pay for the Goods.

15. Ownership/General Lien

(a) The Vendor shall retain ownership of all Goods supplied until it receives

payment in full of all amounts owing by the Customer for all Orders.

(b) If any of the Goods are incorporated in or used as material for other goods

before payment is made ownership in the whole of the other goods shall be

and remain with the Vendor until payment is made. The Vendor’s Security

Interest in the Goods shall continue in the terms of section 82 of the PPSA.

(c) The Vendor shall have a right to stop and retrieve the Goods in transit

whether or not ownership has passed.

16. Ownership

Until payment is made by the Customer, the Customer agrees to:

(a) enable the Goods to be readily identifiable as the property of the Vendor;

(b) hold the Goods as trustee for the Vendor and will deal with the Goods as

agent for and on behalf of the Vendor (but will not hold the Customer out as

an agent to any third parties);

(c) if the Goods are re-sold, the proceeds of re-sale will belong to the Vendor

and the Customer shall keep the proceeds of sale in a separate account for

which separate records are kept.

17. Merger with Other Goods

If the Goods are attached, fixed or incorporated into any property of the Customer,

by way of any manufacturing or assembly process by the Customer or any third

party, title in the products and services shall remain with the Vendor until the

Customer has made payment for all Goods and where those Goods are mixed with

other property so as to be part of or constituent of any new goods title to those

new goods shall be deemed to be assigned to the Vendor as security for the full

satisfaction by the Customer of the full amount owing by the Customer to the

Vendor.

18. Export Prohibition

(a) The Goods provided pursuant to these Terms and Conditions of Trade are sold

for use in New Zealand only and are not to be exported elsewhere, directly or

indirectly, without prior agreement of the Vendor.

(b) In the event that the Vendor consents to the export of the Goods the

Customer is responsible for all costs and compliance with any export

regulations in force within the country for which the Goods are destined.

19. Recovery of Goods

(a) In the event of non-payment or if payment of the Customer’s Account is

overdue the Vendor shall be entitled without prejudice to any right it has at

law or in equity to enter the place where the Goods are stored whether at the

Customer’s premises or property or the premises or property of a third party

for the purpose of recovering and taking possession of the Goods supplied.

(b) The Customer warrants to the Vendor that where the Goods are stored on the

premises or property of a third party the Customer is acting as agent for the

third party and has the full authority of the third party to authorise entry on

to the premises or property of the third party for the purpose of recovering

the Goods supplied without releasing the Customer from liability.

(c) The Vendor will not be responsible for any damage reasonably caused in the

course of removal of Goods supplied either in the possession of the Customer

or a third party and the Customer indemnifies the Vendor to the full extent in

respect of damage caused in the course of removal from the property of a

third party.

(d) The Vendor may resell the Goods and apply the proceeds towards payment of

the Customer’s outstanding Account with the Vendor. Any shortfall will

remain the liability of the Customer. The Customer indemnifies the Vendor

for all costs and expenses including legal costs as between solicitor and client

which the Vendor may incur in recovering the Goods and any monies owed to

it.

20. Warranties

(a) Unless otherwise specified, the Vendor gives no warranty express or implied

as to the quality, description or fitness for any particular purpose of the

Goods and Services.

(b) Where applicable, manufacturer’s warranties will attach to the Goods.

(c) Where the Consumer Guarantees Act 1993 applies the Customer shall have

all the rights and remedies provided under this Act but no others. The

Customer warrants to the Vendor that any Goods and Services supplied by

the Vendor under any order with the Vendor are being acquired by the

Customer for the purpose of its business and the Consumer Guarantees Act

1993 does not apply to the supply of those Goods and Services.

(d) Where Goods supplied are defective in terms of any condition warranty or

guarantee or otherwise do not conform to the Order, the Vendor will at its

discretion replace or repair any faulty Goods or pay the cost of replacing

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them, but only if a claim is made by the Customer within seven days of

delivery of the Goods time being of the essence.

21. Compliance

The Customer shall be solely responsible for obtaining any necessary permits

under and for compliance with all legislation, regulations, by-laws or rules having

the force of law in connection with the installation operation and provision of the

Goods and Services.

22. Cancellation

The Customer shall not be entitled to cancel an Order other than as allowed

pursuant to these Terms and Conditions of Trade.

23. Returns

The Customer shall not be entitled to return Goods or cancel an Order other than

as allowed pursuant to these Terms and Conditions of Trade.

24. Personal Property Securities Act 1999

(a) The Customer hereby acknowledges that these Terms and Conditions of Trade

constitute a security agreement which creates a security interest in favour of

the Vendor in all Goods and Services previously supplied by the Vendor to the

Customer (if any) and all after acquired Goods and Services supplied by the

Vendor to the Customer (or for the Customer's account) to secure the

payment from time to time and at a time, including future advances. The

Customer agrees to grant a "purchase money security interest" to the

Vendor, as that term is defined in the PPSA.

(b) The Customer acknowledges and agrees that by assenting to these terms the

Customer grants a security interest (by virtue of the retention of title clause

in these Terms and Conditions of Trade) to the Vendor and all Goods and

Services previously supplied by the Vendor to the Customer (if any) and all

after-acquired Goods and Services supplied by the Vendor to the Customer

(or for the Customer's account) and these terms shall apply notwithstanding

anything express or implied to the contrary contained in the Customer's

purchase order.

(c) The Customer undertakes to:

(i) sign any further documents and/or provide any further information

(which information the Customer warrants to be complete, accurate and

up-to-date in all respects) which the Vendor may reasonably require to

enable registration of a financing statement or financing change

statement on the Personal Property Securities Register ("PPSR");

(ii) not register a financing change statement as defined in section 135 of

the PPSA or make a demand to alter the financing statement pursuant to

section 162 of the PPSA in respect of the Goods without the prior written

consent of the Vendor;

(i) give the Vendor not less than 14 days' prior written notice of any

proposed change in the Customer's name and/or any other changes in

the Customer's details (including but not limited to changes in the

Customer's address, facsimile number, email address; trading name or

business practice);

(ii) pay all costs incurred by the Vendor in registering and maintaining a

financing statement (including registering a financing change statement)

on the PPSR and/or enforcing or attempting to enforce the security

interest created by these Terms and Conditions of Trade including

executing subordination agreements;

(iii) be responsible for the full costs incurred by the Vendor (including actual

legal fees and disbursements on a solicitor/client basis) in obtaining an

order pursuant to section 167 of the PPSA; and

(iv) the Customer waives any rights it may have under sections 116, 119,

120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA upon

enforcement.

(c) Pursuant to section 148 of the PPSA, unless otherwise agreed to in writing by

the Vendor, the Customer waives the right to receive the verification

statement in respect of any financing statement or financing change

statement relating to the security interest.

(d) To the maximum extent permitted by law, the Customer waives its rights

and, with the Vendor's agreement, contracts out of its rights under sections

referred to in sections 107(2), 8(e) and (g) to (l) of the PPSA.

(e) The Customer agrees that nothing in section 113, 114(1)(a), 117(1)(c), 133

and 134 of the PPSA shall apply to these terms, and, with the Vendor's

agreement, contracts out of such sections.

(f) The Customer and the Vendor agree that section 109(1) of the PPSA is

contracted out of in respect of particular Goods and Services if and only for as

long as the Vendor is not the secured party with priority over all other

secured parties in respect of those Goods and Services.

(g) The Customer agrees that immediately on request by the Vendor the

Customer will procure from any persons considered by the Vendor to be

relevant to its security position such agreement and waivers as the Vendor

may at any time require.

25. Security Interest

The Customer gives the Vendor a Security Interest in all of the Customer’s present

and after-acquired property that the Vendor has performed services on or to or in

which goods or materials supplied or financed by the Vendor have been attached

or incorporated.

26. Events of Default

All payments shall become immediately due to the Vendor and the Vendor may at

its option suspend or terminate these Terms and Conditions of Trade and/or

exercise any of the remedies available to it under these Terms and Conditions of

Trade in the event that:

(a) a receiver is appointed over any of the assets or undertaking of the

Customer;

(b) an application for the appointment of a liquidator is filed against the Customer

which remains unsatisfied for a period of 10 days, or any of the conditions

necessary to render the Customer liable to have a liquidator exist, or a

liquidator is appointed;

(c) the Customer goes into voluntary liquidation, amalgamates with another

company or acquires its own shares in accordance with the Companies Act

1993;

(d) the Customer suspends payments to its creditors or makes or attempts to

make an arrangement or composition or scheme with its creditors; or

(e) the Customer becomes insolvent within the meaning of the Insolvency Act

2006 or is, becomes, or is presumed to be unable to pay its debts as they fall

due as defined in section 287 of the Companies Act 1993 or commits any act

of bankruptcy.

27. Authority to Sell Goods and Services Supplied

Notwithstanding that title in all Goods and Services is retained by the Vendor, the

Customer is authorised to sell the Goods and Services in the ordinary course of

business provided that the authority may be removed by written notice if the

Vendor considers the credit of the Customer to be unsatisfactory or if the

Customer is in default in the performance of its obligations to the Vendor and shall

be deemed automatically revoked if the Customer commits any act of bankruptcy

or any act which would render it liable to be wound up or if a resolution is passed

or proceedings are filed for the winding up of the Customer or a receiver is

appointed for all or any assets of the Customer.

28. Sale of Goods and Services Supplied

(a) Where Goods and Services in respect of which property has not passed to the

Customer are sold by the Customer in the ordinary course of business, the

book debt created on the sale and the proceeds of sale when received shall

be held by the Customer for the Vendor in terms of section 45 of the PPSA.

(b) Where any proceeds of sale are placed in the Customer’s bank account the

funds in the Customer’s bank account shall be deemed to be held on trust for

the Vendor to the extent of proceeds of sale.

(c) Where any payments are made from the Customer’s bank account otherwise

than to the Vendor payment shall be deemed to have been made from all

other funds in the Customer’s bank account and not from funds held on trust

for the Vendor .

(d) The trust obligation imposed by this clause and the Vendor’s entitlements

under the PPSA shall continue for so long as the Vendor is unpaid for all

Goods and Services supplied to the Customer.

29. Security

Without prejudice to such other rights as the Vendor may have pursuant to these

Terms and Conditions of Trade, the Vendor reserves the right to request from the

Customer such security as the Vendor may from time to time think desirable to

secure to the Vendor all sums due to the Vendor and may refuse to supply further

Goods and Services to the Customer until such security is given.

30. Liability

(a) The Vendor’s liability to the Customer shall be limited to the value of the

Order supplied.

(b) The Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes

may imply warranties or conditions or impose obligations upon the Vendor

which cannot by law (or which can only to a limited extent by law) be

excluded or modified. In respect of any such implied warranties, conditions

or terms imposed on the Vendor the Vendor’s liability shall, where it is

allowed, be excluded or if not able to be excluded only apply to the minimum

extent required by the relevant statute.

(c) Except as otherwise provided above the Vendor shall not be liable for any loss

or damage of any kind whatsoever, arising from the supply of Goods and

Services by the Vendor to the Customer including consequential loss whether

suffered or incurred by the Customer or another person and whether in

contract or tort (including negligence) or otherwise and irrespective of

whether such loss or damage arises directly or indirectly from Goods and

Services provided by the Vendor to the Customer.

(d) The Customer shall indemnify the Vendor against all claims and loss of any

kind whatsoever however caused or arising and without limiting the generality

of the foregoing of this clause whether caused or arising as a result of the

negligence of the Vendor or otherwise, brought by any person in connection

with any matter, act, omission, or error by the Vendor its agents or

employees in connection with the Goods and Services.

31. Copyright And Intellectual Property

(a) Unless it is specifically agreed in writing to the contrary, the Vendor retains all

intellectual property rights, including copyright, patents, registered designs,

and all protection of confidential information in respect of any Goods and

Services provided by the Vendor for/to the Customer.

(b) The Customer will at all times keep the Vendor advised of any infringement or

potential infringement by a third party of the Vendor's intellectual property

rights.

(c) The Customer will immediately advise the Vendor of any alleged infringement

by the Vendor of a third party's intellectual property rights. The Customer

will indemnify and hold harmless the Vendor against any losses, costs, actions

or liabilities suffered or incurred as a consequence of such infringement or

alleged infringement.

(d) The Vendor owns and has copyright in all designs, specifications, documents,

and software produced by the Vendor in connection with the Goods provided

pursuant to these Terms and Conditions of Trade and the client may use the

Goods only if paid for in full and for the purpose for which they were intended

and supplied by the Vendor.

32. Construction Contracts Act

(a) All Orders that fit within the meaning of a Construction Contract pursuant to

section 5 of the Construction Contracts Act 2002 ("CCA") are subject to the

CCA and this clause.

(b) In providing the Services, should the Vendor encounter unforeseen or hidden

problems or unsuitable conditions (including but not limited to problems

underground, behind wall or roof space, under the floor, or worn, damaged or

corroded fittings), the Vendor shall contact the Customer forthwith and

provide the Customer with an estimate of further costs to complete the work.

The Customer shall then have the option of accepting the further costs, or

terminating the contract and paying to the Vendor all costs incurred to the

date of termination.

(c) The Customer acknowledges that the Vendor is entitled to progress payments

in accordance with sections 16 and 17 of the CCA and will make payment on

the due date for payment as defined in section 18 of the CCA.

(d) The Vendor retains the right to claim under the CCA by submitting a Payment

Claim as defined in the CCA, in writing, identifying the contract, identifying

the item, the period to which it relates, the amount claimed, when it is due to

be paid and detailing how the claim is calculated.

(e) In the event of a dispute regarding the Payment Claim the parties shall

resolve the matter using the binding fast track process in Part 3 of the CCA.

(f) The Vendor does not accept any liability whatsoever for loss or damage

resulting from defects in designs prepared by any third party. Any such

defects discovered by the Vendor will be brought to the attention of the

Customer forthwith. If the Customer then chooses to proceed with a defective

design the Customer shall confirm same in writing and indemnifies the Vendor

against any loss or liability. The Vendor shall be entitled to cease the

provision of Services until such time as the requested indemnity is provided

by the Customer in writing.

(g) Should the Vendor be asked to incorporate any new, used or second hand

products the Customer acknowledges that no warranty is given as to the

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quality or suitability for any purpose of the products before, during or after

installation.

33. Suitability of Goods and Services

The Customer must satisfy itself that the Goods and Services as ordered are fit

and suitable for the purpose for which they are required. The Vendor makes no

warranties or representation and expressly negates any implied or expressed

condition that the Goods and Services will be suitable for a particular purpose or

use for which the Customer may use them. The Customer accepts all risk and

responsibility for consequences arising from the use of the Goods and Services

whether singularly or in combination with other Goods and Services.

34. Dimensions and Specifications

(a) Dimensions and specifications contained or referred to in any Order,

catalogues, brochure or other publications maintained or issued by the

Vendor are estimates only.

(b) Unless otherwise expressly agreed in writing, it is not a condition of these

Terms and Conditions of Trade or any Order that the Goods and Services will

correspond precisely with such dimensions and specifications and customary

tolerances or in the absence of customary tolerances, reasonable tolerances

shall be allowed.

35. Personal Guarantee of Company Directors or Trustees

If the Customer is a Company or Trust, the Director(s) or Trustee(s) signing this

contract, in consideration for the Vendor agreeing to supply Goods and Services

and grant credit to the Customer at their request, also sign this contract in their

personal capacity and jointly and severally personally guarantee as principal

debtors to the Vendor the payment of any and all moneys now or hereafter owed

by the Customer to the Vendor and indemnify the Vendor against non-payment by

the Customer. Any personal liability of a signatory hereto shall not exclude the

customer in any way whatsoever from the liabilities and obligations contained in

these Terms and Conditions of Trade. The signatories and the Customer shall be

jointly and severally liable under these Terms and Conditions of Trade and for

payment of all sums due hereunder.

36. Assignment

(a) The Customer shall not assign all or any of its rights or obligations under this

contract without the written consent of the Vendor.

(b) The Vendor is entitled at any time to assign to any other party all or any part

of a debt which is owing to the Vendor.

(c) The Vendor may also assign or sub-contract any part of the work which is to

be performed under any contract.

(d) In respect of any assignment by the Vendor pursuant to this clause, the

Assignee shall be entitled to the full rights of the Vendor.

37. Disputes

(a) In the event of any dispute arising between the Vendor and the Customer,

such dispute shall in the first instance be referred to mediation for resolution.

(b) In the event that resolution by mediation is not achieved to the satisfaction of

both parties within 30 days of referral to mediation, either party may then

take legal action to resolve the dispute.

(c) Nothing in this clause prevents the Vendor from taking legal action to enforce

payment of any debt due, nor where required to seek interlocutory or

injunctive relief.

38. Notices

All notices required or committed under these Terms of Trade are to be served as

provided in sections 353, 359, 360 and 361 of the Property Law Act 2007 and

section 387 of the Companies Act 1993, or by facsimile, in which case notice is

deemed to be given the day after sending.

39. Validity

If any provision of this contract shall be invalid, void or illegal or unenforceable the

validity existence, legality and enforceability of the remaining provisions shall not

be affected, prejudiced or impaired.

40. Changes of General Terms and Conditions

(a) The Vendor may at any time refuse an order by the Customer or decline to

approve any application by the Customer for any reason whatsoever.

(b) The existence of an account by the Customer with the Vendor does not

automatically entitle the Customer to credit in the future.

(c) Failure by the Vendor to enforce any of the terms and conditions contained in

these Terms and Conditions of Trade shall not be deemed to be a waiver of

any of the rights or obligations the Vendor has under these Terms and

Conditions of Trade.

(d) The Vendor may from time to time by written notice to the Customer amend,

add to or repeal the trading conditions covered by this Agreement or may

substitute any fresh trading conditions and such amendment, addition or

substitute trading conditions shall be binding on the Customer fourteen days

after the date of delivery of the notice.

41. Force Majeure

Neither the Vendor nor the Customer will be liable to the other for any breach of

this Agreement by any extraordinary occurrences which are beyond the reasonable

control of the party in question.

42. Entire Agreement

These Terms and Conditions of Trade constitute the entire agreement and

supersede and extinguish all prior agreements and understandings between the

Vendor and the Customer.

43. Other Agreements

If there is inconsistency between these Terms and Conditions of Trade and any

order submitted by the Customer or any other arrangement between the Vendor

and Customer, these Terms and Conditions of Trade prevail unless otherwise

agreed in writing by the parties.

44. Governing Law

These Terms and Conditions of Trade will be interpreted in accordance with and

governed by the laws of New Zealand and the New Zealand Courts will have

exclusive jurisdiction over any dispute in relation to the Goods and Services.