Terms of service
Purchase Terms and Conditions
Your Reformer's General Conditions for Supply of Goods
These General Conditions apply to all sales of Goods supplied or to be supplied by U Be Fit Pty Ltd ACN 129 190 450 as trustee for the Stallworthy Business Trust trading as Your Reformer (Supplier) sought by the purchaser named within the Order (Purchaser).
1. The Contract and Precedence of Documents
Nature of these General Conditions
1.1 The Supplier may change these General Conditions from time to time by uploading a new version of these General Conditions on the Supplier's website, together with the date on and from which the General Conditions are effective.
1.2 It is the Purchaser's obligation to check the Supplier's website or ask the Supplier to provide a copy of the most up to date General Conditions at the time the Purchaser places an Order. By placing an Order after the date upon which the new General Conditions have been uploaded, the Purchaser accepts and agrees to be bound by the General Conditions in effect at that time.
Order and Contract
1.3 The Supplier reserves the right to refuse any Order for Goods. No Order shall be binding until it has been accepted by the Supplier, and such acceptance will be confirmed by the Supplier sending a confirmation email to the Purchaser. The Purchaser cannot cancel or amend an Order without the written agreement of the Supplier.
1.4 By submitting an Order for Goods to the Supplier, the Purchaser accepts these General Conditions, including those additional terms and conditions and policies referenced herein.
1.5 Each Order accepted by the Supplier shall constitute a separate agreement, which shall consist of the following documents:
(a) the Order;
(b) the Special Conditions (if any);
(c) these General Conditions; and
(d) any other document which is attached to, or incorporated by reference in, the abovenamed documents (provided that documents incorporated by reference have been provided or made available to, and accepted by, the Supplier),
(together, the Contract).
1.6 No amendment or variation to the Contract is valid or binding unless it is in writing and signed by both Parties.
Precedence of Contract Documents
1.7 If there is any conflict or inconsistency between the documents constituting the Contract, unless otherwise provided, the documents will rank in order of precedence in accordance with the order in which they are listed in clause 1.5 above.
Entire Agreement
1.8 The Contract contains the entire agreement between the Purchaser and the Supplier with respect to its subject matter and supersedes all prior communications and negotiations between the Purchaser and the Supplier in this regard.
1.9 No terms or conditions submitted by either Party that are in addition to, different from or inconsistent with those contained in the Contract are binding upon either Party unless specifically and expressly agreed to in writing signed by both Parties.
1.10 The Purchaser agrees that the Contract in all circumstances prevails over any other terms and conditions asserted by or on behalf of the Purchaser or any other person in respect of such purchase or supply (if any).
1.11 The United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG) is excluded.
2. interpretation
Definitions
2.1 In these General Conditions (and the Contract) the following terms have the meanings set out below:
(a) Business Day means any day other than a Saturday, Sunday, or a public holiday, on which registered banks are open for business in Auckland, New Zealand.
(b) Claim means any claim, cause of action, notice, demand, action, proceeding, litigation, investigation, judgment, however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort (including negligence), statute or otherwise and whether involving a third party or a contracting Party.
(c) Contract has the meaning given to that term in clause 1.5.
(d) Delivery Location means the address that the Purchaser specifies for delivery of the Goods in the Order.
(e) Force Majure Event has the meaning given to that term in clause 11.4.
(f) General Conditions means these Supplier's General Terms and Conditions for Supply of Goods.
(g) Goods means the goods, materials, supplies, equipment or other items purchased or to be purchased by the Purchaser from the Supplier as identified in the Order, from time to time.
(h) GST Act means the Goods and Services Tax Act 1985 (as amended) and any related tax legislation or regulation.
(i) GST means goods and services tax within the meaning of the GST Act and, except where the contrary intention appears, expressions used in this clause have the meanings given to them in the GST Act.
(j) Insolvency Event means in relation to the Purchaser, where the Purchaser:
(i) becomes or is presumed bankrupt or commits an act of bankruptcy;
(ii) becomes or is presumed to be insolvent;
(iii) has a receiver, administrator, liquidator or person having a similar or analogous function appointed or any action is taken to appoint any such person;
(iv) is removed from the Register of Companies;
(v) the Party enters into, or takes any action to enter into, an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of its creditors;
(vi) disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
(vii) has any of its assets subject to any form of seizure or execution;
(viii) suspends or ceases, or threatens to cease, to conduct its principal business; or
(ix) anything analogous to or of a similar effect to anything described above.
(k) Liabilities means liabilities, losses, damages, costs and expenses of any kind and however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort (including negligence), statute or otherwise including where arising under any Claim.
(l) Non Excludable Guarantee has the meaning given in clause 9.4.
(m) Order means a document that specifies the details of the Goods to be purchased and will include details of the particular Good or Goods, price, Delivery Location, purchaser details, and Payment Terms.
(n) Party means a party to the Contract.
(o) Payment Terms has the meaning specified or referenced in the Order or if not identified in the Order, as advised by the Supplier to the Purchaser in writing.
(p) PPSA means the Personal Property and Securities Act 1999.
(q) Purchaser has the meaning given to that term in clause 1.1.
(r) Secured Property means all Goods supplied to the Purchaser by the Supplier (whether now or in the future) and for the avoidance of doubt includes the proceeds of those Goods.
(s) Specifications mean the written specifications for the Goods as approved and issued by the Supplier and any variation of those specifications made in accordance with the Contract as provided in the Order.
(t) Special Conditions means the special conditions identified in the Order or such conditions as advised by the Supplier to the Purchaser in writing as being Special Conditions.
(u) Supplier has the meaning given to that term in clause 1.1.
Interpretation
2.2 Unless expressed to the contrary, in the Contract:
(a) words in the singular include the plural and vice versa;
(b) if a word or phrase is defined, its other grammatical forms have corresponding meanings;
(c) the word "including" and other similar words do not imply any limitation;
(d) reference to a Party includes that Party's successors and permitted assigns;
(e) a reference to a statute includes any subordinate legislation made under it and amendments to or replacement of any of them from time to time;
(f) a right includes a benefit, remedy, discretion or power;
(g) time is to local time in Auckland, New Zealand;
(h) "$" or "dollars" is a reference to the currency referred to in the Order (or New Zealand dollars if not referenced in the Order);
(i) this or any other document includes the document as novated, varied or replaced and despite any change in the identity of the Parties;
(j) writing includes:
(i) any mode of representing or reproducing words in tangible and permanently visible form, and includes fax transmissions; and
(ii) words created or stored in any electronic medium and retrievable in perceivable form;
(k) a clause, schedule or annexure is a reference to a clause, schedule or annexure, as the case may be, of the Contract;
(l) if the date on or by which any act must be done under the Contract is not a Business Day, the act must be done on or by the next Business Day;
(m) if any act is done after 5pm on the specified day, it is taken to have been done on the following Business Day;
(n) any agreement, representation, warranty or indemnity by two or more Parties (including where two or more persons are included in the same defined term) binds them jointly and severally; and
(o) any agreement, representation, warranty or indemnity in favour of two or more Parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally.
3. Supply of Goods
3.1 The Supplier agrees to supply the Goods under the terms of the Contract in consideration for payment by Purchaser.
4. Title and Risk
Risk in the Goods
4.1 Unless the Supplier explicitly agrees in the Order to carry the risk in the Goods upon delivery to the Delivery Location, the risk in the Goods passes to the Purchaser from the time the Goods are dispatched from the Supplier's premises (Dispatch Time).
4.2 The Purchaser must ensure that the Goods are adequately insured from the Dispatch Time and otherwise accepts all risk of the Goods from that Dispatch Time.
Title in the Goods
4.3 Subject to clause 4.4, title in and to the Goods will not pass to the Purchaser until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of the Goods.
(a) assigns or transfers any right or title to any intellectual property in the Goods to the Purchaser; or
(b) provides the Purchaser with a licence to use any mark, name, logo, branding or merchandise for any reason (including that the Purchaser must not use for promotion or advertising or any other commercial exploitation).
Before Transfer of Ownership
4.5 Until ownership of the Goods has passed to the Purchaser, the Purchaser will:
(a) have no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation the Supplier owes to the Purchaser;
(b) not resell the Goods;
(c) not be able to claim any lien over the Goods;
(d) hold the Goods on a fiduciary basis as the Supplier's bailee and owes the Supplier the duties and liabilities of a bailee;
(e) store the Goods (at no cost to the Supplier) separately from all other goods of the Purchaser or any third party in such a way that they remain readily identifiable as the Supplier's property;
(f) not permit any security interest to be registered or any other encumbrance to be taken over the Goods;
(g) not deliver them or any document of title to the Goods to any person except as directed by the Supplier;
(h) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(i) maintain the Goods in satisfactory condition and keep them insured on the Supplier's behalf for their full price against all risks to the reasonable satisfaction of the Supplier (on request the Purchaser will produce the policy of insurance to the Supplier).
4.6 If any of the Goods are damaged or destroyed prior to title in them passing to the Purchaser, the Supplier is entitled, without prejudice to our other rights or remedies, to receive all insurance proceeds payable in respect of the Goods whether or not the price has become payable under the Contract. The production of these General Terms by the Supplier is sufficient evidence of the Supplier's rights to receive the insurance proceeds without the need for any person dealing with them to make further enquiries.
Use of Goods
4.7 The Purchaser must not use the Goods for any purpose other than the intended use of the Goods as we describe in our instructional materials.
5. Delivery
Date of Delivery
5.1 Any dates specified by the Supplier for delivery of the Goods are intended to be an estimate and time for delivery will not be made of the essence by notice. The Supplier shall use reasonable commercial endeavours to ensure that the Goods are delivered by the specified delivery date, or if there is no specified delivery date, within a reasonable time after the Goods become available for delivery (if the Purchaser has pre-ordered, delivery will be within a reasonable time of the delivery date given as part of the pre-order).
5.2 The Goods will be deemed to be delivered when the Goods arrive at the Delivery Location (in which case the unloading of the Goods and security of the Delivery Location is the Purchaser's responsibility and at the Purchaser's risk).
(a) ;
(b) risk in the Goods will pass to the Purchaser; and
(c) the Goods will be deemed to have been delivered.
Liability for Failure to Deliver
5.3 Subject to the other provisions of these General Conditions, the Supplier will not be liable for any indirect or consequential loss (including loss of profits, loss of business, or depletion of goodwill) arising from any delay or failure to deliver the Goods, except to the extent such loss arises from the Supplier’s negligence or wilful misconduct. Nothing in this clause limits or excludes any liability that cannot be excluded by law.
Failure to Accept Delivery
5.4 If for any reason the Purchaser fails to accept delivery of any of the Goods at the Delivery Address when they are ready for delivery, or the Supplier is unable to deliver the Goods to the Delivery Location because the Purchaser has not provided appropriate instructions, documents, licences or authorisations, the Purchaser shall be liable to the Supplier for all costs incurred by the Supplier arising from such non-delivery (including costs of redelivery, storage, additional freight, travel and demurrage).
Non-delivery
5.5 The quantity of any consignment of Goods as recorded by the Supplier on despatch from the Supplier's place of business will be conclusive evidence of the quantity received by the Purchaser on delivery unless the Purchaser can provide conclusive evidence proving the contrary.
6. Price
Price Payable
6.1 The price payable for the Goods shall be:
(a) the price for the Goods as set out in the Order at the time the order is received by the Supplier or as otherwise notified by the Supplier to the Purchaser in writing; and
(b) the delivery fee and other charges arising from the delivery of the Goods.
Taxes
6.2 Unless otherwise expressly stated, all prices exclude any applicable taxes (including GST), duties, or other similar charges imposed on or in relation to the Goods (Taxes) which shall be paid by the Purchaser in addition to the price of the Goods.
6.3 The Supplier shall issue the Purchaser a valid tax invoice for all Products supplied (plus any applicable Taxes). The Supplier is not bound by any error or omission on any invoice or statement issued by it to the Purchaser.
Payment of GST
6.4 If a Party makes a taxable supply under or in connection with the Contract, the recipient of the taxable supply must pay to the Supplier at the same time, and in addition to the GST-exclusive consideration, an amount equal to the GST payable on that supply.
Adjustments
6.5 If an adjustment event arises in connection with a supply made under this Contract, the Supplier must give the other party an adjustment note in accordance with the relevant GST law.
Reimbursements
6.6 If this Contract requires one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount on input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense.
7. Payments to Supplier
Method of Payment
7.1 Unless otherwise provided in the Contract, all payments required to be made to the Supplier by the Purchaser pursuant to the Contract must be made in New Zealand dollars by the due date in cleared funds paid into the Supplier's nominated bank account (as advised to the Purchaser from time to time.
Payment Terms
7.2 Unless otherwise provided for in the Contract, all amounts payable by the Purchaser to the Supplier are payable in accordance with the Payment Terms and if no Payment Terms are expressly provided in the relevant Order, all amounts payable to the Supplier are payable in full within 7 days from the date of the invoice provided by the Supplier or its agent. The Supplier reserves the right to require full or partial payment before the Goods are delivered.
Payment for Goods
7.3 The Purchaser will make all payments due under the Contract in full without any deduction whether by way of setoff, counterclaim, discount, abatement or otherwise.
7.4 Any payment received from the Purchaser may be applied by the Supplier to all or part of any amount owing to the Supplier as the Supplier sees fit, irrespective of whether that payment is intended by the Purchaser to be for particular Good or in connection with a particular invoice.
7.5 If there is any dispute about an invoice, the Purchaser shall pay the undisputed portion of that invoice by the due date, and work with the Supplier in good faith to promptly resolve the dispute.
7.6 If the Purchaser fails to pay the Supplier any sum due pursuant to the Contract in accordance with the Payment Terms, the Purchaser will be liable to pay interest to the Supplier on such sum from the due date for the payment at the annual rate of 2% above the Commonwealth Bank Corporate Overdraft Reference Rate from time to time, accruing on a daily basis until payment is made.
Description of Goods
7.7 Any non-material deviation from the Specifications, quantity, description, particulars of weights, dimensions and product ingredients of the Goods does not vitiate any Contract with the Supplier or form grounds for any Claim against the Supplier.
8. Personal Property Securities Act 1999
PPSA Provisions
8.1 In this clause 8, the terms "security interest", "financing change statement", "financing statement", "perfected", "proceeds", "purchase money security interest", "registration event" and "verification statement" have the meanings given to them under the PPSA.
8.2 The Purchaser agrees to grant the Supplier a security interest over the Secured Property as security for all amounts owing, and for the performance by the Purchaser of its obligations, under the Contract.
8.3 The Purchaser acknowledges and agrees that any security interest created by this Contract, or any transaction contemplated by it, extends to, and acts as a security interest in respect of, any proceeds (including any account) derived from, or from a dealing with, the Goods and accession to the Goods.
8.4 The Purchaser agrees to do all things reasonably requested by the Supplier for the Supplier to perfect its security interest in the Secured Property, including to:
(a) enable the Supplier to register fully valid and effective financing statements or financing change statements with respect to any interest over the Secured Property created by the Contract or any transaction contemplated by it; and
(b) ensure that any security interest which is purported to be reserved or created by the Contract, or any transaction contemplated it, is:
(i) a first ranking perfected security interest over all the Secured Property;
(ii) perfected by control to the extent possible under the PPSA; and
(iii) if applicable, recorded as a purchase money security interest on the Personal Property and Securities Register.
8.5 The Purchaser agrees:
(a) to immediately notify the Supplier of any of the following:
(i) the Purchaser changes its name address, email address or any other details that have been, or are required to be, recorded on the PPSR in connection with any security interest created by the Contract or any transaction contemplated it;
(ii) the Purchaser intends to make any material change in the nature or scope of its business as presently concluded;
(iii) the Purchaser intends to change its registered address for service, or move its principal place of business outside of New Zealand;
(iv) if the Purchaser does not have an New Zealand Business Number (NZBN), or the Purchaser is a trustee of a trust without an NZBN, or the Purchaser is a partner in a partnership without an NZBN, the Purchaser, trust or partnership acquires an NZBN; and
(v) if the Purchaser has an NZBN (or is the trustee of a trust that has an NZBN or is a partner in a partnership that has an NZBN), as soon as possible after the Purchaser becomes aware that the NZBN will change or cease to apply; and
(b) to not, without the prior written consent of the Supplier, lodge or serve a financing change statement or an amendment demand in relation to any security interest created by the Contract or any transaction contemplated by it.
8.6 To the extent that part 9 of the PPSA applies to any security interest created under the Contract, the Purchaser and the Supplier agree that sections 114(1)(a), 133 and 134 of the PPSA will not apply on the enforcement by the Supplier of its rights in respect of any such security interest. The Purchaser also waives any rights it may have under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA on such enforcement.
8.7 If the PPSA is amended after the date of these General Conditions to permit the Supplier and the Purchaser to agree to exclude or to not comply with any other provisions of the PPSA, the Supplier may notify the Purchaser that any of these provisions are excluded, or that the Supplier need not comply with any of those provisions as notified to the Purchaser by the Supplier. The Purchaser acknowledges receipt of a copy of these General Conditions and waives any right it may have to receive from the Supplier any notice under the PPSA (including a copy of any financing statement, verification statement or financing change statement that is registered, issued or received at anytime in relation to any Goods supplied under the Contract) unless the notice is required by the PPSA and cannot be excluded.
9. Limitation of Liability
Liability for Goods supplied by the Supplier
9.1 The following provisions set out the entire Liability of the Supplier (including any Liability for the acts or omissions of its employees, agents and subcontractors) to the Purchaser in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Purchaser of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
Exclusions
9.2 Except as expressly provided in the Contract, all representations, warranties, conditions and other terms express or implied by statute, trade, custom or usage, common law, or otherwise in relation to the supply of the Goods are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Without limiting clause 9.2, the Purchaser acknowledges and agrees that if it is in trade and acquiring the Goods for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 (CGA) and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 (FTA) do not apply to such supply.
Non-Excludable Guarantee
9.4 Nothing in the Contract limits, excludes, or modifies any guarantee, term, condition, or warranty implied or imposed by law (including New Zealand consumer laws such as the CGA and FTA) (Non-Excludable Guarantee) to the extent that it would be illegal, or not permissible under law, for the Supplier to, or attempt to, limit, exclude, or modify such a Non-Excludable Guarantee.
Total Liability
9.5 The Supplier's Liability for breach of a Non Excludable Guarantee applicable to the supply of Goods is, where permitted, limited to:
(a) replacement (or the cost of replacement) of the Goods;
(b) the supply (or the cost of supply) of equivalent Goods; or
(c) the repair (or the cost of repair) of the Goods,
(at the Supplier's option).
9.6 To the maximum extent permitted by law, neither Party will have any liability to the other, or any third party, for fines, penalties, taxes (except GST) and any exemplary, aggravated or punitive damages, liquidated damages or any indirect or consequential loss (including loss of business, loss of revenue, loss of contract, loss of production, lost opportunity costs), loss which does not naturally arise, legal costs and expenses (except reasonable legal costs awarded by a court) except where:
(a) such losses are covered by an insurance policy held by the party and in which case, Liability is limited to the amount of paid out by the insurer; or
(b) the Purchaser misuses or infringes any intellectual property belonging to the Supplier.
9.7 To the maximum extent permitted by law, the Supplier does not have any Liability or responsibility for any:
(a) personal injury, fatigue, or property damage sustained by or through use of the Goods; or
(b) loss or damage arising from delay or failure to perform its obligations due to any matter beyond the Supplier's reasonable control nor any loss or damage caused or contributed to by the Purchaser.
9.8 Except to the extent excluded by law, the Purchaser indemnifies the Supplier against any losses, damages, Claims, Liabilities, expenses, payments or outgoings incurred by the Supplier to the extent any of these were caused by the Purchaser's, or any one or more of its agent's, officer's, subcontractor's or employee's acts or omissions or its breach of its obligations under the Contract.
9.9 The Purchaser accepts the Goods at its own risk except where the Supplier owes a duty of care at law that has not been, or cannot be, excluded by the Contract and, save as set out in the Contract, the Supplier will not be liable to the Purchaser for any loss, damage, injury or death sustained by any person or to any property howsoever caused.
10. Indemnity
10.1 Except to the extent caused or contributed to by the Supplier’s gross negligence, fraud, or wilful misconduct, the Purchaser shall indemnify and hold harmless the Supplier from and against any Claims, losses, or damages arising directly from:
(a) loss or damage to property (excluding property owned by the Supplier) caused by the Purchaser's use or misuse of the Goods;
(b) reasonable legal costs incurred by the Supplier in enforcing its rights under this Contract, provided the Supplier is successful in such enforcement; and/or
(c) personal injury or death to the extent caused by the Purchaser’s use or misuse of the Goods, except where caused or contributed to by the Supplier’s gross negligence, fraud, or wilful misconduct.
Right of Termination for Purchaser's Acts or Omissions
11.1 If the Purchaser:
(a) fails to pay any amount due under the Contract on the due date for payment;
(b) commits a material breach of its obligations under the Contract and such breach is unable to be remedied or remains unremedied 5 Business Days after receiving written notice of such breach; or
(c) suffers an Insolvency Event,
then all money which would become payable by the Purchaser to the Supplier at a later date on any account shall become immediately due and payable without the requirement of any further notice to the Purchaser, and the Supplier may, without prejudice to any other remedy available to the Supplier:
(d) immediately suspend or terminate the Contract and/or any Order by giving written notice to the Purchaser;
(e) require the Purchaser to promptly return all Goods in its possession or control that has not been paid for; and
(f) exercise any and all remedies afforded to a secured party by Part 9 of the PPSA and enter onto and into any property owned, occupied or used by the Purchaser without notice in order to inspect, search for and remove any Goods that are in the possession of the Purchaser.
11.2 Where the Supplier exercises its rights under clause 11.1(f):
(a) the Supplier shall not be liable to the Purchaser or any third party for any harm, loss or damage caused by the exercise of its rights under that clause; and
(b) the Supplier shall be entitled to dispose of the Goods, including being entitled to resell any or all of the Goods and apply the proceeds in or towards payment of all monies owing to the Supplier by the Purchaser, and the Purchaser shall indemnify the Supplier for any loss in revenue incurred by the Supplier on realisation, as calculated by deducting the net proceeds of such sale from the price at which the relevant Goods were bought by the Purchaser (the net proceeds of sale being calculated as the proceeds of sale less the costs of recovering and reselling the Good under this clause 11).
Further Rights of Termination
11.3 The Supplier has quoted the price for the Goods on the basis that the materials or component products incorporated into the Goods can be acquired from third party suppliers at an estimated price at a certain date (market price). The Purchaser acknowledges and accepts that the Supplier may pass through increased supply costs to the Purchaser by increasing the Contract Price by an equivalent amount at any time prior to the Supplier's delivery of the Goods to the Purchaser. If the Purchaser does not agree to the increased Contract Price, the Purchaser may terminate the Contract by written notice within 5 Business Days of receiving notification from the Supplier of the Contract Price increase. In those circumstances:
(a) the Supplier must refund to the Purchaser any money paid as full or part payment of the Contract Price; and
(b) except as provided under clause 14.2(a)(i), neither Party incurs a Liability to the other Party due to terminating the Contract.
11.4 The Supplier may by written notice to the Purchaser terminate the Contract where an unforeseen event including an act of God, government action, strike, natural catastrophe, pandemic, embargo, labour strike, or any other event outside of the Supplier's reasonable control (Force Majure Event) results in the Supplier being delayed from supplying the Goods for at least 30 Business Days, and may otherwise suspend performance of its obligations under the Contract for the period that such event continues (the Supplier shall not be liable for any breach to the extent such breach is due to a Force Majeure Event, provided that it uses reasonable endeavours to mitigate the effect of the Force Majeure Event and resumes full performance of the Contract as soon as reasonably practicable).
12. General provisions
Notices
12.1 Any notice, demand, consent or other communication given or made pursuant to the Contract must be in writing and be personally served, sent by post or by email to the address or email address of the relevant Party as provided in the Contract or such other address as that Party may have notified to the other Party from time to time.
12.2 A notice will be taken to be duly given:
(a) in the case of personal delivery, when delivered;
(b) in the case of delivery by post, 3 Business Days after the date of posting (if posted to an address in the same country) or 7 Business days after the date of posting (if posted to an address in another country); or
(c) in the case of email, on the date and time at which it enters the recipient's information system (as shown in confirmation of delivery report from the sender's information system, which indicates that the email was sent to the email address of the recipient designated for the purposes of the Contract),
provided that any communication received or deemed received after 5pm or on a day which is not a Business Day shall be deemed not to have been received until the next Business day.
Waiver
12.3 A failure to exercise, or any delay in exercising any right, power or remedy by a Party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
Further Assurances
12.4 Each Party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of the Contract and the transactions contemplated by it.
Severability
12.5 If any provision of the Contract is found to be void, voidable or unenforceable the validity and enforceability of the remaining provisions shall not in any way be affected or impaired.
Governing Law
12.6 The Contract is governed by the laws of New Zealand and the Parties irrevocably submit to the non-exclusive jurisdiction of the Courts of New Zealand.
Assignment
12.7 The Purchaser may not assign, transfer or otherwise deal with any of its rights or obligations under the Contract without the Supplier's prior written consent.
Time of Essence
12.8 Time is of the essence in the performance by the parties of their respective obligations under the Contract.
Privity
12.9 Except as expressly provided otherwise in the Contract, a person who is not a party shall not have any rights under or in connection with the Contract by virtue of the Contracts and Commercial Law Act 2017.
Remedies Cumulative
12.10 Except as expressly provided otherwise in the Contract, the rights and remedies provided in the Contract are cumulative and not exclusive of any rights or remedies provided by this Contract or law.
Survival
12.11 Following termination of the Contract, any provisions that are by their nature intended to survive, shall remain in effect.
Effective date: