Terms & Conditions
1. Definitions1.1 "Contract" means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 "PGO" means PGO Horticulture Limited, its successors and assigns or any person acting on behalf of and with the authority of PGO Horticulture Limited.
1.3 "Customer" means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting PGO to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer's executors, administrators, successors and permitted assigns.
1.4"Goods" means all Goods or Services supplied by PGO to the Customer at the Customer's request from time to time (where the context so permits the terms 'Goods' or 'Services' shall be interchangeable for the other).
1.5"Confidential Information" means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party's intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, "Personal Information" such as: name, address, D.O.B, occupation, driver's license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6"Cookies" means small files which are stored on a user's computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client's computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
1.7"Price" means the Price payable (plus any Goods and Services Tax ("GST") where applicable) for the Goods as agreed between PGO and the Customer in accordance with clause 6 below.
2. Acceptance2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with PGO and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods request exceeds the Customers credit limit and/or the account exceeds the payment terms, PGO reserves the right to refuse delivery.
2.6 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.
2.7 Goods are supplied by PGO only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer's order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
2.8 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on PGO's website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
3. Errors and Omissions3.1 The Customer acknowledges and accepts that PGO 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 PGO in the formation and/or administration of this Contract; and/or (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by PGO 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 PGO; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Customer shall give PGO not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer's details (including but not limited to, changes in the Customer's name, address and contact phone number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by PGO as a result of the Customer's failure to comply with this clause.
5. On-Line Ordering5.1 The Customer acknowledges and agrees that:
(a) PGO does not guarantee the website's performance;
(b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by PGO;
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
(d) there are inherent hazards in electronic distribution, and as such PGO cannot warrant against delays or errors in transmitting data between the Customer and PGO including orders, and you agree that to the maximum extent permitted by law, PGO will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
(e) when making a transaction through the website, the Customer's Personal Information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by PGO and/or displayed on the website. The encryption process ensures that the Customer's Personal Information cannot be read by or altered by outside influences;
(f) if the Customer is not the cardholder for any credit card being used to pay for the Goods, PGO shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
5.2 PGO reserves the right to terminate the Customer's order if it learns that you have provided false or misleading information, interfered with other users or the administration of PGO's business, or violated these terms and conditions.
6. Price and Payment6.1 At PGO's sole discretion the Price shall be either:
(a) as indicated on any invoice provided by PGO to the Customer; or
(b) the Price as at the date of delivery of the Goods according to PGO's current price list; or
(c) PGO's quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of ninety (90) days.
6.2 PGO reserves the right to change the Price if a variation to PGO's quotation is requested. Variations will be charged for on the basis of PGO's quotation, and will be detailed in writing, and shown as variations on PGO's invoice. The Customer shall be required to respond to any variation submitted by PGO within ten (10) working days. Failure to do so will entitle PGO 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.
6.3 At PGO's sole discretion a non-refundable deposit may be required.
6.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by PGO, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of installments/progress payments in accordance with PGO's payment schedule;
(d) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer's address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by PGO.
6.5 Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and PGO.
6.6 PGO may in its discretion allocate any payment received from the Customer towards any invoice that PGO determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer PGO may re-allocate any payments previously received and allocated. In the absence of any payment allocation by PGO, payment will be deemed to be allocated in such manner as preserves the maximum value of PGO's Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by PGO nor to withhold payment of any invoice because part of that invoice is in dispute.
6.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to PGO an amount equal to any GST PGO must pay for any supply by PGO under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
7. Delivery of Goods7.1 Delivery ("Delivery") of the Goods is taken to occur at the time that:
(a) the Customer or the Customer's nominated carrier takes possession of the Goods at PGO's address; or
(b) PGO (or PGO's nominated carrier) delivers the Goods to the Customer's nominated address even if the Customer is not present at the address.
7.2 At PGO's sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
7.3 PGO 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.
7.4 Any time specified by PGO for delivery of the Goods is an estimate only and PGO will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that PGO is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then PGO shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Approved Handlers
8.1 Where required, the Customer shall upon request provide evidence to PGO in the form of a current Approved Handler certificate and/or GrowSafe Certificate that the Customer is an approved handler under Section 5 of the Hazardous Substances and New Organisms (Personnel Qualifications) Regulations 2001 and is legally able to purchase, store and use hazardous products.
9. Risk9.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, PGO is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by PGO is sufficient evidence of PGO's rights to receive the insurance proceeds without the need for any person dealing with PGO to make further enquiries.
9.3 If the Customer requests PGO to leave Goods outside PGO's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer's sole risk.
9.4 When switching nutrients or chemicals it is the Customer's responsibility to test nutrients on a small sample crop prior to applying it the full crop to ensure that the mix provided by PGO is appropriate for its intended use.
9.5 The Customer acknowledges and accepts:
(a) that PGO will not be responsible for the misapplication of nutrients and/or fertilisers applied by the Customer or be liable for any loss, damage, costs or claims (including, but not limited to, crop disease, plant burns, nutrient deficiencies etc.) as a result the Customer's misapplication of such products;
(b) that it is the Customer's responsibility to ensure that nutrients and/or fertilisers are handled, stored and used by certified Approved Handlers and PGO reserves the right to request evidence of such certification as per clause 8 and furthermore, PGO shall not be liable for any breach by the Customer of safety data sheets on Goods provided or other health and safety requirements for the handling of such Goods;
(c) that PGO shall reserve the right to charge the Customer for time incurred by PGO in the provision of advice or trouble shooting problems;
(d) that at no time shall PGO be liable in any manner where the Customer uses the Goods for the purpose of growing illicit or illegal plants and/or illicit purposes. Any charges, fines or other penalty incurred by the Customer on discovery of such illegal or illicit acts shall be the sole responsibility of the Customer.
10.1 Where applicable, the Customer shall ensure that PGO has clear and free access to the site at all times to enable them to install the Goods. PGO shall not be liable for any loss or damage to the site (including, without limitation, damage to fences, access ways and concreted or paved or grassed areas) unless due to the negligence of PGO.
11. Use of Advice11.1 Any advice, recommendation, information, assistance or service provided by PGO in relation to Goods or Services supplied is given in good faith and shall be accepted without liability on the part of PGO and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods or Services.
11.2 The Customer agrees that PGO shall not be liable for any failure on the part of the Customer to fix, install, use, or maintain the Goods in accordance with any advice, recommendation, specification, information, assistance or service provided by PGO in relation to Goods or Services supplied. The performance of the Goods is dependent on the environment, product selection, handling, installation and maintenance.
12. Title12.1 PGO and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid PGO all amounts owing to PGO; and (b) the Customer has met all of its other obligations to PGO.
12.2 Receipt by PGO 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.
12.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 12.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to PGO on request;
(b) the Customer holds the benefit of the Customer's insurance of the Goods on trust for PGO and must pay to PGO the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for PGO and must pay or deliver the proceeds to PGO on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of PGO and must sell, dispose of or return the resulting product to PGO as it so directs;
(e) the Customer irrevocably authorises PGO to enter any premises where PGO believes the Goods are kept and recover possession of the Goods;
(f) PGO may recover possession of any Goods in transit whether or not delivery has occurred;
(g) the Customer 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 PGO;
(h) PGO may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
13.Personal Property Securities Act 1999 ("PPSA")
13.1 Upon assenting to these terms and conditions in writing the Customer 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 Customer to PGO for Services – that have previously been supplied and that will be supplied in the future by PGO to the Customer.
13.2The Customer 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 PGO may reasonably require to register a financing statement or financing change statement on the Personal PropertySecurities Register;
(b) indemnify, and upon demand reimburse, PGO for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of PGO; and
(d) immediately advise PGO 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.
13.3 PGO and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
13.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
13.5 Unless otherwise agreed to in writing by PGO, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
13.6 The Customer shall unconditionally ratify any actions taken by PGO under clauses 13.1 to 13.5.
13.7 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge14.1 In consideration of PGO agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Customer indemnifies PGO from and against all PGO's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PGO's rights under this clause.
14.3 The Customer irrevocably appoints PGO and each director of PGO as the Customer's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Customer's behalf.
15. Defects15.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify PGO of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford PGO an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which PGO has agreed in writing that the Customer is entitled to reject, PGO's liability is limited to either (at PGO's discretion) replacing the Goods or repairing the Goods.
15.2 Goods will not be accepted for return other than in accordance with 15.1 above, and provided that:
(a) PGO has agreed in writing to accept the return of the Goods; and(b) the Goods are returned at the Customer's cost within fourteen (14) days of the delivery date; and
(c) PGO will not be liable for Goods which have not been stored or used in a proper manner; 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.
15.3 PGO may (in its discretion) accept the return of non-defective Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
15.4 Subject to clause 15.1, non-stocklist items or Goods made to the Customer's specifications are not acceptable for credit or return.
16. Warranty16.1 Subject to the conditions of warranty set out in clause 16.2 PGO warrants that if any defect in any workmanship of PGO becomes apparent and is reported to PGO within twelve (12) months of the date of delivery (time being of the essence) then PGO will either (at PGO's sole discretion) replace or remedy the workmanship.
16.2 The conditions applicable to the warranty given by clause 16.1 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 Customer to properly maintain any Goods; or
(ii)failure on the part of the Customer to follow any instructions or guidelines provided by PGO; 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 PGO shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without PGO's consent.
(c) in respect of all claims PGO shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer's claim.
16.3 For Goods not manufactured by PGO, the warranty shall be the current warranty provided by the manufacturer of the Goods. PGO 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.
16.4 In the case of second hand Goods, the Customer acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by PGO as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. PGO shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
17. Consumer Guarantees Act 1993
17.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by PGO to the Customer.
18. Intellectual Property18.1 Where PGO has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of PGO. Under no circumstances may such designs, drawings and documents be used without the express written approval of PGO.
18.2 The Customer warrants that all designs, specifications or instructions given to PGO will not cause PGO to infringe any patent, registered design or trademark in the execution of the Customer's order and the Customer agrees to indemnify PGO against any action taken by a third party against PGO in respect of any such infringement.
18.3 The Customer agrees that PGO may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which PGO has created for the Customer.
19. Default and Consequences of Default19.1 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 PGO's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
19.2 If the Customer owes PGO any money the Customer shall indemnify PGO from and against all costs and disbursements incurred by PGO in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, PGO's collection agency costs, and bank dishonour fees).
19.3 Further to any other rights or remedies PGO may have under this Contract, if a Customer has made payment to PGO, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by PGO under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer's obligations under this Contract.
19.4 Without prejudice to PGO's other remedies at law PGO shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to PGO shall, whether or not due for payment, become immediately payable if:
(a) any money payable to PGO becomes overdue, or in PGO's opinion the Customer will be unable to make a payment when it falls due; (b) the Customer has exceeded any applicable credit limit provided by PGO;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes 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 Customer or any asset of the Customer.
20. Cancellation20.1 Without prejudice to any other remedies PGO may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions PGO may suspend or terminate the supply of Goods to the Customer. PGO will not be liable to the Customer for any loss or damage the Customer suffers because PGO has exercised its rights under this clause.
20.2 PGO may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice PGO shall repay to the Customer any money paid by the Customer for the Goods. PGO shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.3 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by PGO as a direct result of the cancellation (including, but not limited to, any loss of profits).
20.4 Cancellation of orders for Goods made to the Customer's specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
21.2 Notwithstanding clause 21.1, privacy limitations will extend to PGO in respect of Cookies where transactions for purchases/orders transpire directly from PGO's website. PGO agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer's: (a) IP address, browser, email client type and other similar details; (b) tracking website usage and traffic; and
(c) reports are available to PGO when PGO sends an email to the Customer, so PGO may collect and review that information ("collectively Personal Information")In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via PGO's website.
21.3 The Customer authorises PGO or PGO's agent to:
(a) access, collect, retain and use any information about the Customer;
(i)(including, name, address, D.O.B, occupation, driver's license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer's creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.(b) disclose information about the Customer, whether collected by PGO from the Customer directly or obtained by PGO 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 Customer.
21.4 Where the Customer is an individual the authorities under clause 21.3 are authorities or consents for the purposes of the Privacy Act 1993.
21.5 The Customer shall have the right to request PGO for a copy of the Personal Information about the Customer retained by PGO and the right to request PGO to correct any incorrect Personal Information about the Customer held by PGO.
22. Service of Notices22.1 Any written notice given under this Contract 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 Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract; (d) if sent by email to the other party's last known email address.
22.2 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.
23. Trusts23.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust ("Trust") then whether or not PGO may have notice of the Trust, the Customer covenants with PGO as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer 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;
(c) the Customer will not without consent in writing of PGO (PGO will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i)the removal, replacement or retirement of the Customer 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.
24. General24.1 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.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
24.3 PGO shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by PGO of these terms and conditions (alternatively PGO's liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24.4 PGO may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer's consent.
24.5 The Customer cannot licence or assign without the written approval of PGO.
24.6 PGO may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of PGO's subcontractors without the authority of PGO.
24.7 The Customer agrees that PGO may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for PGO to provide Goods to the Customer.
24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
24.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.