Terms and Conditions

1. Definitions

1.1 “Seller” means Allegion (New Zealand) Limited, its successors and assigns or any person acting

on behalf of and with the authority of Allegion (New Zealand) Limited.

1.2 “Buyer” means the person/s or any person acting on behalf of and with the authority of the Buyer

requesting the Seller to provide the Services as specified in any proposal, quotation, order, invoice

or other documentation, and:

(a) if there is more than one Buyer, is a reference to each Buyer jointly and severally; and

(b) if the Buyer is a part of a Trust, shall be bound in their capacity as a trustee; and

1.3 “Goods” means all Goods or Services supplied by the Seller to the Buyer at the Buyer’s request

from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be

interchangeable for the other).

1.4 “Confidential Information” means any information supplied by the Seller to the Buyer and any

confidential information of the Seller that comes into the possession of the Buyer in connection

with this Agreement, including without limitation the terms of this Agreement, other than

information that is generally available in the public domain (without unauthorised disclosure under

this agreement) other than through breach of this Agreement by the Buyer.

1.5 “Agreement” means the terms and conditions contained herein, together with any quotation, order,

invoice or other document or amendments expressed to be supplemental to this Agreement. If

there are any inconsistencies between the incorporated documentation (including, but not limited

to, any special terms or conditions), then any conflicting term or condition contained in any

quotation, order, invoice or other document, or amendments expressed to be supplemental to this

Agreement, shall prevail.

1.6 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for

the Goods as agreed between the Seller and the Buyer in accordance with clause 5 below and shall

be in New Zealand Dollars, unless otherwise specified.

1.7 “GST” means Goods and Services Tax as defined within the “Goods and Services Tax Act 1985”.

2. Acceptance

2.1 The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by

these terms and conditions if the Buyer places an order for or accepts delivery of the Goods.

2.2 These terms and conditions shall prevail to the extent of any inconsistency with any other

schedule or document pertaining to this Agreement between the Buyer and the Seller.

2.3 None of the Seller’s agents or representatives are authorised to make any representations,

statements, conditions or agreements not expressed by the manager of the Seller in writing nor is

the Seller bound by any such unauthorised statements.

2.4 The Buyer acknowledges that:

(a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in

the Seller’s fact sheets, price lists or advertising material, are approximate only and are given

by way of identification only. The Buyer shall not be entitled to rely on such information, and

any use of such does not constitute a sale by description, and does not form part of the

Agreement, unless expressly stated as such in writing by the Seller;

(b) while the Seller may have provided information or figures to the Buyer regarding the

performance of the Goods, the Buyer acknowledges that the Seller has given these in good

faith, and are estimates based on the prescribed standards.

2.5 The Buyer acknowledges and accepts that:

(a) the Buyer shall be responsible for ensuring that the Goods ordered are suitable for their

intended use;

(b) the supply of Goods on credit shall not take effect until the Buyer has completed a credit

application with the Seller and it has been approved with a credit limit established for the

account;

account exceeds the payment terms, the Seller reserves the right to refuse delivery and/or

request an alternative payment method;

(d) the supply of Goods for accepted orders may be subject to availability and if, for any reason,

Goods are not or cease to be available, the Seller reserves the right to vary the Price with

alternative Goods as per clause 5.2, subject to prior confirmation and agreement of both

parties. The Seller also reserves the right to halt all Services until such time as the Seller and

the Buyer agree to such changes. The Seller shall not be liable to the Buyer for any loss or

damage the Buyer suffers due to the Seller exercising its rights under this clause; and

(e) changes in regulations or decisions made by local authorities may alter necessary

specifications and therefore costs that are unforeseen in order to satisfy such changes in

regulations or decisions and this will be invoiced as a variation.

2.6 The commencement date shall be the date of the first delivery of the Services, or from the date of

signing, whichever, is the earlier.

2.7 In the event that the Goods and/or Services provided by the Seller are the subject of an insurance

claim that the Buyer has made, then the Buyer shall be responsible for the payment of any monies

payable to the insurance company and agrees to honour their obligation for payment for such

transactions invoiced by the Seller and shall ensure payment is made by the due date irrespective

of whether the insurance claim is successful.

2.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties

have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other

applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions

3.1 The Buyer acknowledges and accepts that the Seller shall, without prejudice, accept no liability in

respect of any alleged or actual error(s) and/or omission(s):

(a) resulting from an inadvertent mistake made by the Seller in the formation and/or

administration of this Agreement; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Seller

in respect of the Services.

3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not

attributable to the negligence and/or wilful misconduct of the Seller; the Buyer shall not be entitled

to treat this Agreement as repudiated nor render it invalid.

4. Change in Control

4.1 The Buyer shall give the Seller not less than fourteen (14) days prior written notice of any proposed

change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not

limited to, changes in the Buyer’s name, address and contact phone or fax number/s, change of

trustees or business practice). The Buyer shall be liable for any loss incurred by the Seller as a

result of the Buyer’s failure to comply with this clause.

5. Price and Payment

5.1 At the Seller’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by the Seller to the Buyer; or

(b) the Price as at the date of delivery of the Goods according to the Seller’s current price list; or

quotation or otherwise for a period of thirty (30) days.

5.2 The Seller reserves the right to change the Price:

(a) by giving thirty (30) days’ notice in writing to the Buyer; or

(b) if a variation to the Goods which are to be supplied is requested; or

specifications) is requested; or

(d) if during the course of the Services, the Goods are not or cease to be available from the

Seller’s third party suppliers, then the Seller reserves the right to provide alternative Goods; or

(e) in the event of increases to the Seller in the cost of labour or materials (including, but not

limited to, any variation as a result of fluctuations in currency exchange rates and/or

international freight and insurance charges, of stock or increases to the Seller in the cost of

taxes, duties and levies, etc.) which are beyond the Seller’s control.

5.3 Variations will be charged for on the basis of the Seller’s quotation, and will be detailed in writing,

and shown as variations on the Seller’s invoice. The Buyer shall be required to respond to any

variation submitted by the Seller within ten (10) working days. Failure to do so will entitle

the Seller to add the cost of the variation to the Price. Payment for all variations must be

made in full at the time of their completion.

5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Buyer on the

date/s determined by the Seller, which may be:

(a) on Delivery of the Goods;

(b) before Delivery of the Goods;

Goods were invoiced and despatched;

(d) the date specified on any invoice, statement or other Allegion form as being the date of

payment; or

(e) failing any notice to the contrary, the date which is seven (7) days following the date of any

invoice given to the Buyer by the Seller.

5.5 Any discounts applicable to the Price shall become null and void if payment is not made by the due

date stated on the invoice and/or statement.

5.6 Payment may be made by cheque, bank cheque, electronic/online banking, or by any other method

as agreed to between the Buyer and the Seller.

5.7 The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or

claimed to be owed to the Buyer by the Seller nor to withhold payment of any invoice

because part of that invoice is in dispute.

5.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Buyer must

pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under

this or any other Agreement for the sale of the Goods. The Buyer must pay GST, without deduction

or set off of any other amounts, at the same time and on the same basis as the Buyer pays the

Price. In addition, the Buyer must pay any other taxes and duties that may be applicable in addition

to the Price except where they are expressly included in the Price.

6. Delivery of Goods

6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:

(a) the Buyer or the Buyer’s nominated carrier takes possession of the Goods at the Seller’s

address; or

(b) the Seller (or the Seller’s nominated carrier) delivers the Goods to the Buyer’s nominated

address even if the Buyer is not present at the address.

6.2 At the Seller’s sole discretion the cost of delivery is either included or is in addition to the Price,

subject to:

(a) orders to the value of $250.00 net Price and over will have freight prepaid to the Buyer’s

nominated address in New Zealand for orders accepted by the Seller;

(b) orders to the value of less than $250.00 net Price, or where overnight, weekend, or special

Delivery is requested, will have freight charged to the Buyer;

for Delivery. In the event that the Buyer is unable to take Delivery of the Goods as arranged,

then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.

6.3 The Seller may deliver the Goods in separate instalments. Each separate instalment shall be

invoiced and paid in accordance with the provisions in these terms and conditions.

6.4 Any time specified by the Seller for delivery of the Goods is an estimate only. The Buyer must take

delivery by receipt or collection of the Goods whenever they are tendered for delivery. The Seller

will not be liable for any loss or damage incurred by the Buyer as a result of delivery being late.

7. Risk

7.1 Risk of damage to or loss of the Goods passes to the Buyer on Delivery and the Buyer must insure

the Goods on or before Delivery.

7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to

the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The

production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to

receive the insurance proceeds without the need for any person dealing with the Seller to make

further enquiries.

7.3 If the Buyer requests the Seller to leave Goods outside the Seller’s premises for collection or to

deliver the Goods to an unattended location then such Goods shall be left at the Buyer’s sole risk.

8. Title

8.1 The Seller and the Buyer agree that ownership of the Goods shall not pass until:

(a) the Buyer has paid the Seller all amounts owing to the Seller; and

(b) the Buyer has met all of its other obligations to the Seller.

8.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment

until that form of payment has been honoured, cleared or recognised.

8.3 It is further agreed that until ownership of the Goods passes to the Buyer in accordance with

clause 8.1:

(a) the Buyer is only a bailee of the Goods and must return the Goods to the Seller on request;

(b) the Buyer holds the benefit of the Buyer’s insurance of the Goods on trust for the Seller and

must pay to the Seller the proceeds of any insurance in the event of the Goods being lost,

damaged or destroyed;

the ordinary course of business and for market value. If the Buyer sells, disposes or parts with

possession of the Goods then the Buyer must hold the proceeds of any such act on trust for

the Seller and must pay or deliver the proceeds to the Seller on demand;

(d) the Buyer should not convert or process the Goods or intermix them with other goods but if

the Buyer does so then the Buyer holds the resulting product on trust for the benefit of the

Seller and must sell, dispose of or return the resulting product to the Seller as it so directs;

(e) the Buyer irrevocably authorises the Seller to enter any premises where the Seller believes the

Goods are kept and recover possession of the Goods;

(f) the Seller may recover possession of any Goods in transit whether or not delivery has

occurred;

(g) the Buyer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise

give away any interest in the Goods while they remain the property of the Seller;

(h) the Seller may commence proceedings to recover the Price of the Goods sold

notwithstanding that ownership of the Goods has not passed to the Buyer.

9. Personal Property Securities Act 1999 (“PPSA”)

9.1 Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA;

and

(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary

obligation of the Buyer to the Seller for Services – that have previously been supplied and that

will be supplied in the future by the Seller to the Buyer.

9.2 The Buyer undertakes to:

(a) sign any further documents and/or provide any further information (such information to be

complete, accurate and up-to-date in all respects) which the Seller may reasonably require to

Securities Register;

(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a

financing statement or financing change statement on the Personal Property Securities

in relation to the Goods and/or collateral (account) in favour of a third party without the prior

written consent of the Seller; and

(d) immediately advise the Seller of any material change in its business practices of selling the

Goods which would result in a change in the nature of proceeds derived from such sales.

9.3 The Seller and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall

apply to these terms and conditions.

9.4 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131

and 132 of the PPSA.

9.5 Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a

verification statement in accordance with section 148 of the PPSA.

9.6 The Buyer shall unconditionally ratify any actions taken by the Seller under clauses 9.1 to 9.5.

10. Security and Charge

10.1 In consideration of the Seller agreeing to supply the Goods, the Buyer charges all of its rights, title

and interest (whether joint or several) in any land, realty or other assets capable of being charged,

owned by the Buyer either now or in the future, to secure the performance by the Buyer of its

obligations under these terms and conditions (including, but not limited to, the payment of any

money).

10.2 The Buyer indemnifies the Seller from and against all the Seller’s costs and disbursements

including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights

under this clause.

10.3 The Buyer irrevocably appoints the Seller and each director of the Seller as the Buyer’s true and

lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10

including, but not limited to, signing any document on the Buyer’s behalf.

11. Defects and Returns

11.1 The Buyer shall inspect the Goods on delivery and shall within fourteen (14) days of delivery (time

being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure

to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect

the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective

in any way. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to

be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that

the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion)

replacing the Goods or repairing the Goods.

11.2 Goods will not be accepted for return other than in accordance with 11.1 above, and provided that:

(a) the Seller has agreed in writing to accept the return of the Goods; and

(b) the Goods are returned at the Buyer’s cost within fourteen (14) days of the delivery date; and

and

(d) the Goods are returned in the condition in which they were delivered and with all packaging

material, brochures and instruction material in as new condition as is reasonably possible in

the circumstances; and

(e) Goods are returned with the original packing slip or invoice number; and

(f) returned Goods are clearly identified with the Buyer’s name.

11.3 The Seller may (in its discretion) accept the return of non-defective Goods for credit but this may

incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.

11.4 Subject to clause 11.1, non-stocklist items or Goods made to the Buyer’s specifications are not

acceptable for credit or return.

12. Warranty

12.1 The Seller’s standard limited warranty(ies) related to the Goods or Services are applicable to this

Agreement. The limited warranty(ies) will be separately furnished by Seller to Buyer at the time

of Delivery.

12.2 In the event that certain product warranties are not separately furnished, then the Seller warrants

only to the Buyer that the Goods will be free from defects in material and workmanship for a period

of one (1) year from the date of shipment of the Goods. The Seller’s sole obligation under this

warranty is limited to repairing or replacing, at its option, the defective products.

12.3 The conditions applicable to the warranty given by clause 12.1 are:

(a) the warranty shall not cover any defect or damage which may be caused or partly caused

by or arise through:

(i) failure on the part of the Buyer to properly maintain any Goods; or

(ii) failure on the part of the Buyer to follow any instructions or guidelines provided by the

Seller; or

(iii) any use of any Goods otherwise than for any application specified on a quote or order

form; or

(iv) the continued use of any Goods after any defect becomes apparent or would have

become apparent to a reasonably prudent operator or user; or

(v) fair wear and tear, any accident or act of God.

(b) the warranty shall cease and the Seller shall thereafter in no circumstances be liable under

the terms of the warranty if the workmanship is repaired, altered or overhauled without the

Seller’s consent.

either replacing or remedying the workmanship or in properly assessing the Buyer’s claim.

12.4 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided

by the manufacturer of the Goods. The Seller shall not be bound by nor be responsible for any

term, condition, representation or warranty other than that which is given by the manufacturer

of the Goods.

12.5 NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE GOODS OR

SERVICES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY

OR FITNESS FOR A PARTICULAR PURPOSE.

13. Consumer Guarantees Act 1993

13.1 If the Buyer is acquiring Goods for the purposes of a trade or business, the Buyer acknowledges

that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of

Goods by the Seller to the Buyer.

14. Intellectual Property

14.1 Where the Seller has designed, drawn or developed Goods for the Buyer or produced any other

documentation for the Buyer or the Buyer’s benefit (directly or indirectly) or in any other way

connected to this agreement, then the copyright in any designs and drawings and documents

shall remain the property of the Seller. Under no circumstances may such designs, drawings

and documents be used without the express written approval of the Seller.

14.2 The Buyer warrants that all designs, specifications or instructions given to the Seller will not

cause the Seller to infringe any patent, registered design or trademark in the execution of

the Buyer’s order and the Buyer agrees to indemnify the Seller against any action taken by

a third party against the Seller in respect of any such infringement.

14.3 The Buyer agrees that the Seller may (at no cost) use for the purposes of marketing or entry

into any competition, any documents, designs, drawings or Goods which the Seller has

created for the Buyer.

15. Default and Consequences of Default

15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due,

until the date of payment, at a rate of two and a half percent (2.5%) per calendar month

(and at the Seller’s sole discretion such interest shall compound monthly at such a rate)

after as well as before any judgment.

15.2 If the Buyer owes the Seller any money the Buyer shall indemnify the Seller from and against

all costs and disbursements incurred by the Seller in recovering the debt (including but not

limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s

collection agency costs, and bank dishonour fees).

15.3 Further to any other rights or remedies the Seller may have under this Agreement, if a Buyer

has made payment to the Seller, and the transaction is subsequently reversed, the Buyer shall

be liable for the amount of the reversed transaction, in addition to any further costs incurred

by the Seller under this clause 15 where it can be proven that such reversal is found to be

illegal, fraudulent or in contravention to the Buyer’s obligations under this Agreement.

15.4 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel

all or any part of any order of the Buyer which remains unfulfilled and all amounts owing

to the Seller shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer

will be unable to make a payment when it falls due;

(b) the Buyer has exceeded any applicable credit limit provided by the Seller;

or enters into an arrangement with creditors, or makes an assignment for the benefit of its

creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed

in respect of the Buyer or any asset of the Buyer.

16. Cancellation

16.1 Without prejudice to any other remedies the Seller may have, if at any time the Buyer

is in breach of any obligation (including those relating to payment) under these terms

and conditions the Seller may suspend or terminate the supply of Goods to the Buyer.

The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because

the Seller has exercised its rights under this clause.

16.2 Either party may terminate this Agreement by providing the other party with a minimum of

thirty (30) days’ notice in writing, subject to:

(a) where the Seller cancels any Agreement to which these terms and conditions apply or cancels

Delivery of Goods at any time before the Goods are delivered, then upon giving such notice

the Seller shall repay to the Buyer any money paid by the Buyer for the Goods. The Seller shall

not be liable for any loss or damage whatsoever arising from such cancellation; and

(b) where the Buyer cancels Delivery of Goods, then the Buyer shall be liable for any and all loss

incurred (whether direct or indirect) by the Seller as a direct result of the cancellation

(including, but not limited to, any loss of profits). All current invoices issued up to and

including the cancellation date shall become immediately due and payable.

16.3 Cancellation of orders for Goods made to the Buyer’s specifications, or for non-stocklist items,

will definitely not be accepted once production has commenced, or an order has been placed.

17. Compliance with Laws

17.1 Both the Buyer and the Seller agree that they will at all times ensure that they comply with the

provisions of all statutes, regulations and bylaws of government, local and other public authorities

that may be applicable to the Services, including occupational health and safety laws, and any

other relevant safety standards or legislation.

17.2 In advertising, marketing, promoting, sales and installation of the Goods and in carrying on the

Buyer’s business, each Buyer, its owners, officers, directors, employees or agents (collectively

and individually in this clause “Buyer”) must comply with its, his or her obligations under the

law including without limitation, the Buyer must not:

(a) make any untrue or misleading statement relating to the Seller, its goods and services

including the Goods, its business or its practices;

(b) pay, offer or promise to pay, or authorise the payment of, any monies or anything of value,

directly or indirectly, to any government official or employee, any official or employee of a

state-run or state-owned or controlled enterprise or entity, any official or employee of a public

international organisation, any candidate for political or public office, any official or

employee of any political party, or any family member or relative of such persons or any

political party for the purpose of influencing any act or decision of any such official, employee,

candidate, political party, enterprise or entity, public organisation, or government to obtain or

retain business, or direct business to any person or entity, or for any other improper

advantage or purpose, and in the event the Buyer breaches its, his or her obligations under

this clause, the Seller may immediately terminate this Agreement and the Buyer shall

indemnify and hold harmless the Seller against any and all claims, losses, damages, penalties

or fines related to such breach of the Agreement.

18. Confidentiality

18.1 Each party agrees to treat all information and ideas communicated by the other party confidential

and each agrees not to divulge it to any third party, without the other party’s written consent, other

than:

(a) as required by law (in which case it must simultaneously be advised to the other respective

contracted party of such disclosure); or

(b) to the extent necessary to perform its obligations under this Agreement.

18.2 The quotation and the information contained in the quotation provided by the Seller to the Buyer is

done so on a “commercial in confidence” basis thereby, the Buyer agrees not to reproduce or

provide said information in any manner to any third party without the prior written approval of the

Seller.

19. Privacy Act 1993

19.1 The Buyer authorises the Seller or the Seller’s agent to:

(a) access, collect, retain and use any information about the Buyer;

(i) (including any overdue fines balance information held by the Ministry of Justice) for the

purpose of assessing the Buyer’s creditworthiness; or

(ii) for the purpose of marketing products and services to the Buyer.

(b) disclose information about the Buyer, whether collected by the Seller from the Buyer directly

or obtained by the Seller from any other source, to any other credit provider or any credit

reporting agency for the purposes of providing or obtaining a credit reference, debt collection

or notifying a default by the Buyer.

19.2 Where the Buyer is an individual the authorities under clause 19.1 are authorities or consents for

the purposes of the Privacy Act 1993.

19.3 The Buyer shall have the right to request the Seller for a copy of the information about the Buyer

retained by the Seller and the right to request the Seller to correct any incorrect information about

the Buyer held by the Seller.

20. Service of Notices

20.1 Any written notice given under this Agreement shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this Agreement;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this

Agreement (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

20.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the

time when by the ordinary course of post, the notice would have been delivered.

21. Trusts

21.1 If the Buyer at any time upon or subsequent to entering in to the Agreement is acting in the

capacity of trustee of any trust (“Trust”) then whether or not the Seller may have notice of the

Trust, the Buyer covenants with the Seller as follows:

(a) the Agreement extends to all rights of indemnity which the Buyer now or subsequently may

have against the Trust and the trust fund;

(b) the Buyer has full and complete power and authority under the Trust to enter into the

Agreement and the provisions of the Trust do not purport to exclude or take away the right of

indemnity of the Buyer against the Trust or the trust fund. The Buyer will not release the right

of indemnity or commit any breach of trust or be a party to any other action which might

prejudice that right of indemnity.

withhold consent), cause, permit, or suffer to happen any of the following events;

(i) the removal, replacement or retirement of the Buyer as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii) any advancement or distribution of capital of the Trust; or

(iv) any resettlement of the trust property.

22. Construction Contracts Act 2002

22.1 The parties agree that for the purposes of the Construction Contracts Act 2002 where the Seller is

a commercial provider this Agreement is not a commercial construction contract or a construction

contract whether for work on a commercial or residential property and liability under this

Agreement shall be in no way limited by any contract that the Buyer may have entered into with a

third party in relation to the supply of Goods and/or Services to that third party or the payment by

the third party to the Buyer of any monies whether by progress payments or otherwise.

23. General

23.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any

matter arising hereunder, shall be submitted to, and settled by arbitration in accordance with the

Arbitration Act 1996 or its replacement(s).

23.2 The failure by either party to enforce any provision of these terms and conditions shall not be

treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce

that provision. If any provision of these terms and conditions shall be invalid, void, illegal or

unenforceable the validity, existence, legality and enforceability of the remaining provisions shall

not be affected, prejudiced or impaired.

23.3 These terms and conditions and any Agreement to which they apply shall be governed by the laws

of New Zealand and are subject to the jurisdiction of the Auckland Courts of New Zealand.

23.4 The Seller shall be under no liability whatsoever to the Buyer for any indirect and/or consequential

loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the

Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages

which under no circumstances shall exceed the Price of the Goods).

23.5 The Seller may licence and/or assign all or any part of its rights and/or obligations under this

Agreement without the Buyer’s consent.

23.6 The Buyer cannot licence or assign without the written approval of the Seller.

23.7 The Seller may elect to subcontract out any part of the Services but shall not be relieved from any

liability or obligation under this Agreement by so doing. Furthermore, the Buyer agrees and

understands that they have no authority to give any instruction to any of the Seller’s

sub-contractors without the authority of the Seller.

23.8 The Buyer agrees that the Seller may amend these terms and conditions for subsequent future

Agreements with the Buyer by disclosing such to the Buyer in writing. These changes shall be

deemed to take effect from the date on which the Buyer accepts such changes, or otherwise at

such time as the Buyer makes a further request for the Seller to provide Goods to the Buyer.

23.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out,

industrial action/riot/civil commotion, robbery, fire, flood, storm, or other event beyond the

reasonable control of either party, and the Seller:

(a) shall not be liable for any claims for non-fulfilment or late Delivery should actual Delivery (or

any parts) be delayed in consequence of unforeseen events under this clause 23.9 and

unforeseen breakdown of machinery (save where caused by improper maintenance or

operation by untrained personnel), suspension of electricity or other relevant power supply

adverse non-foreseeable weather conditions, action of government or port authority, delay

of vessel, railroad embargoes, inability to obtain transportation facilities or due to failure of an

original equipment manufacturer to supply components by the due date; and

(b) shall be entitled (at its option) to terminate this Agreement or extend the time for

performance.

23.10 Both parties warrant that they have the power to enter into this Agreement and have obtained all

necessary authorisations to allow them to do so, they are not insolvent and that this Agreement

creates binding and valid legal obligations on them.

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