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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 Peppa Trading Limited t/a Redsea 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 a maximum value of $100,000.00 for defective workmanship.
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.