Farmgate Security Limited
Terms & Conditions 

1 Application
1.1.1 Unless otherwise specifically agreed in writing, we supply Goods and provide the Services on these Terms of Trade only.
1.1.2 You agree to be bound by these Terms of Trade.
1.1.3 Our agents or representatives are not authorised to make any representations, statements, conditions, offers or enter or accept agreements not expressed by our General Manager in writing, nor are we bound by any such unauthorised statements.
2 Terms of Agreement
2.1 Estimates
2.1.1 Any estimate given to you by us is an offer to supply Goods and provide Services on these Terms of Trade and will lapse 20 Business Days from the date of that quote unless we have given to you a different time period in writing.
2.1.2 We rely on the information provided by you either in person or by phone-based assessments
undertaken by us by us to prepare our estimates. It is your responsibility to confirm that any estimate provided by us covers the work you expect us to complete for you. Any uncertainties should be clarified prior to acceptance.
2.1.3 We may withdraw an estimate prior to your acceptance of it by notifying you in writing that the
quote is withdrawn.
2.1.4 Estimates may include an:
(a) establishment cost which applies to the supply of all Goods specified in the quote (“Establishment Cost”); and
(b) monthly ongoing cost for Services, which includes, but is not limited to, costs for data and hosting (“Services Fee”).
2.1.5 By accepting an estimate, either in writing or verbally, you are deemed to have made an order for the Goods and/or Services specified in the quotation.
2.2 Orders
2.2.1 We may accept or decline to accept any Order at our sole and absolute discretion.
2.2.2 We reserve the right to cancel an Order we have accepted without any liability to you if the Goods and/or Services are not available or are no longer available, or fulfilling the Order becomes impracticable or uneconomic due to any cause beyond our reasonable control.
2.2.3 You may request your Order be changed or cancelled by making a request to us in writing. If we accept your change or cancellation you agree to reimburse us for any reasonable costs incurred in connection with that change or cancellation.
2.3 Price
2.3.1 The Establishment Cost and the Services Fee are at the prices agreed between us when the Order is made
2.3.2 In additional to the estimate additional costs incurred in reasonable supply of the goods and services and not included in the original estimate will be billable in a final Invoice.
2.3.3 All prices are in New Zealand dollars unless stated otherwise.
2.3.4 Despite Subclauses 2.1.4 and 2.3.1, we reserve the right to vary the agreed fees where:
(a) There has been an increase in the cost of providing the Goods and/or supplying the Services beyond our reasonable control between the date the price was agreed between us and the Goods are delivered and/or the Services are commenced; and
(b) Where it is necessary for alterations to specifications of Goods and/or the delivery of Goods and/or the Services being provided after an Order has been placed and accepted by us.
2.3.5 Unless otherwise agreed in writing, all prices are exclusive of:
(a) installation charges and installation related supplies;
(b) delivery and transport fees
(c) GST (unless otherwise specified) and/or
(d) other government duties, levies or taxes in respect of the Goods and/or Services, whether incurred in New Zealand or elsewhere.
These will be the responsibility of and the cost of you. Where the payment of such taxes, duties, charges or supplies is our responsibility at law the price will be increased by the amount of such taxes or duties.
3 Payments
3.1 Payments
3.1.1 Unless otherwise agreed by us in writing:
(a) Establishment Cost: A payment as specified on the estimate is payable immediately on your acceptance of the estimate.
(b) Services Fee: Payment of the Services Fee is payable either upfront or before the first Business Day of each month being payment in advance for the provision of the Services for the forthcoming month, as specified on the estimate.
3.1.2 You agree to make payments to us without set-off or deduction of any kind. Payment of the Services Fee may be via automatic payment, bank transfer or direct credit or similar as agreed to in writing by us.
Please Read carefully
3.1.3 Delivery of the Goods will not take place until all monies owed to us under the Establishment Cost are received by us in full without deduction or set off of any kind.
3.1.4 In the event of non-payment of the Services Fee, we may choose (at our sole discretion) to:
(a) Postpone our performance of or cease performing any Services until such time as the Services Fee is paid up-to-date; and/or
(b) Charge a reinstatement fee to recommence providing Services to you; or
(c) Terminate Services without notice to you.
3.2 Default
3.2.1 Without prejudice to any other rights or remedies that we may have against you, if we have reasonable cause to suspect a Default Event has occurred or is about to occur, then we may at any time without notice to you:
(a) Terminate the delivery of Goods we agreed to provide to you under an Order and retain any Goods we have already acquired on your behalf.
(b) Terminate the Services with immediate effect.
3.2.2 We will not be liable for any loss or damage suffered by you as a result of our exercise or attempt to exercise our rights under this Section.
3.2.3 You indemnify us for any cost, expense, loss or damage we incur to remedy any breach of these Terms of Trade by you, and/or in the exercise or attempted exercise of our rights under these Terms of Trade, including but not limited to legal costs incurred by us on a solicitor/client basis, any debt recovery fees and losses or damages incurred by us due to non-performance of any relevant contracts we hold with third parties, all of which may be incurred at our sole discretion without any reference to you.
3.2.4 If payment is not made by a due date for payment, then we may charge default interest at the rate of 14% per annum. The interest will be calculated daily from the date payment was due until the date payment is received by us. We may apportion payments to outstanding accounts as we see fit.
4 Goods
4.1 Delivery
4.1.1 Any date given by us as the date that the Goods would be delivered to the property specified by you and accepted by us is an estimate and is not a binding commitment on our part.
4.1.2 We will endeavour to have the Goods delivered on time but are not liable to you for failure to do so and that failure does not entitle you to cancel the Order or seek costs/damages from us.
4.2 Installation
4.2.1 Installation of the Goods is your responsibility but we will supply an installation guide (“Guide”) where appliable which must be followed by you during installation. Failure to follow our Guide and any other specific installation instructions given by us to you may result in non-performance of the Goods and/or Services.
4.2.2 Our supply of Goods and Services under these terms is subject to the correct installation of the Goods in accordance with our Guide including but not limited to:
(a) correct positioning of the goods on your property (camera angel, height, etc);
(b) correct depth and installation of poles in the ground if applicable;
(c) compliance with relevant health and safety requirements; and
(d) correct connection of the different components supplied.
4.2.3 Incorrect or defective installation (as determined by us), may result in additional costs incurred by us which you agree to pay.
4.2.4 On your request, we may agree to complete the installation of the Goods on the site ourselves or appoint an agent or contractor to do so. You agree to cover any cost we incur in completing the installation for you (including paying our agent/contractor direct), which is in addition to the Establishment Cost and Services Fee already agreed by us.
4.2.5 We reserve the right to install the Goods by instalments. Should we fail to install the Goods on a date specified by us or make defective installation of one or more instalments of the Goods, this does not entitle you to cancel the order or seek damages from us.
4.3 Risk & Title
4.3.1 Risk of damage or loss to the Goods passes to you immediately after we have delivered the Goods to the property specified by you and accepted by us.
4.3.2 Title to the Goods shall pass to you upon your payment of the Establishment Cost in full and following our delivery of the Goods to you.
4.4 Insurance
4.4.1 You must make your own arrangements for insurance of the Goods, from the point of time at which the Goods are at your risk (refer Subclause 4.3.2).
4.4.2 You shall remain liable to us for all amounts payable by you, notwithstanding damage to or loss or deterioration of the Goods following delivery of the Goods.
4.4.3 We are under no obligation to insure Goods against damage, destruction or deterioration from the time that the risk in the Goods passes to you and you hereby indemnify us against any loss, claim, liability or payment incurred by us (directly or indirectly) on account of any Goods suffering damage, loss or deterioration or otherwise on or after installation of the Goods.
4.5 Maintenance of Goods
4.5.1 In order to:
(a) maintain the Goods supplied by us where agreed; or
(b) remedy any issue with the Goods (whether the issue has been identified by us or following notification from you and including the replacement of any Good),
you agree that we, or an agent/contractor nominated by us, may have unrestricted access to the property during Business Hours to effect such maintenance and/or remedy and that such maintenance and/or remedy of the Goods and travel time and related expenses may be at your cost if it is found such maintenance and/or remedy has been caused by you either directly or indirectly. Whether such cost is payable by you shall be determined by us at our sole discretion acting reasonably.
4.5.2 If, at our sole discretion acting reasonably, it is necessary to visit your property outside of Business Hours in order to maintain or remedy the Goods supplied by us we will endeavour to seek your consent which may not be unreasonably withheld.
4.5.3 While we will endeavour to notify you (in the case of Subclause 5.2.1) and/or seek you consent (in the case of Subclause 5.5.2) to the times and purpose of our visit to your property under this Clause 5.5, we are not required to do so and you agree that Clause 7.4 shall apply.
4.5.4 We agree to not interfere with the operation of the property beyond what is reasonable to complete maintenance and/or remedy of Goods on the property.
5 Services
5.1 Services
5.1.1 The Services may consist of one or more of the following:
(a)4G SIM card and included data connection with a telecommunications provider;(b)In-phone notifications;(c)Access to mobile applications for management of vehicles entering the site;(d)For the Farmgate APP and LPR software, up to three months of vehicle monitoring on your behalf while you get used to using the mobile application after which you will be solely responsible for monitoring and operating the mobile application.(e)Technical support helpdesk for reporting issues (being a land line or mobile number but not necessarily a 24-hour helpline);(f)A Support service for vehicles who are requesting access to your property when you are not available to be contacted (being a land line or mobile number but not necessarily a24-hour helpline);(g)Ongoing fault monitoring of the Goods and software upgrades as may be required; and(h)Storage of images and personal information.
5.1.2 The Services listed in Subclause 5.1.1 are subject to the warranties recorded in Clause 7.2 and your continued payment of the applicable monthly or annual Services Fee.
5.1.3 The Services do not commence until the Goods are correctly installed and/or delivered to your site.
5.1.4 You are responsible to notify us of any limitation, damage, loss or deterioration to the Goods while they are installed on your property.
5.1.5 You agree not to interfere with or open any Goods or components supplied to you by us without our written permission. Any attempt to self-diagnose any faults or issues via interfering or opening any Goods or components without our written permission may result in additional costs incurred by us which you agree to pay.
5.1.6 Examples of interfering or opening Goods or components includes, but without limitation to:
(a)removal of SIM card from any camera.
(b)tampering or adjusting any electronic component.
(c)anything else that adversely affects the normal operations of the Goods or Services.
5.1.7 Any actions contemplated by Subclauses 5.1.5 and 5.1.6 that result in damage or fault to the Goods or Services may result in termination of Services. 5.1.8 Some of these services may incur additional charges which you agree to pay for, such as but not limited to; phone based support, fault finding and software upgrades which may be required from time to time.
5.2 Adjustment and Monitoring
5.2.1 Following physical installation of the Goods and at any point during the Services, the following may
be required to refine performance of the Goods and Services:
(a) Manual adjustment and positioning of camera direction and/or angle.
(b) Loading of approved vehicles into the mobile application.
(c) Regular monitoring and actioning of activity in a mobile application.
5.2.2 You agree to complete this adjustment and monitoring where requested to do so by us or allow us
reasonable access to the site to do so instead.
5.3 Fair Use policies
5.3.1 Services supplied are subject to our Fair use polices. This is includes but is not limited to:
(a)Use of the supplied technologies in accordance with estimated normal operating conditions.
(b)Our estimate of different data usages for each different camera and applicable application.
(c)Use of any third party or in-house monitoring or call center service.
5.3.2 We reserve the right to deny or restrict Your Services, or immediately to suspend or terminate your Services if;
(a)we deem your data usage to be outside of normal expected levels whether caused by youor otherwise
(b)Excess data usage is determinantal to you or us, or both, financially;
(c)call centre and/or monitoring service use goes outside normal expected levels.
5.3.3 We also reserve the right to invoice you for additional data charges at the cost passed onto us by our network providers.
5.3.4 We will endeavor to advise you as soon as practically possible of any breach of fair use data and to seek remedy.
5.4 Data Ownership and Storage
5.4.1 Any data collected and stored, hosted or otherwise by us or our third party providers remains our property.
5.4.2 Any data collected including vehicle information is held for the purposes as specified in our data collection and retention policy including but not limited to:
(a)maintenance of our services to you;
(b)vehicle tracking and monitoring for access control purposes;
(c)any other use deemed reasonable provided it is lawful.
5.5 Interruption of Services
5.5.1 We do not guarantee nor warrant that the Goods and/or Services can and will operate continuously without disruption. There may be times when the Goods and/or Services are either offline or non-operational for periods of time beyond our means to rectify as a result of, but without limitation to, one or more of the following:
(a)Connectivity, maintenance or faults with the Services or one of our contracted service or network providers.
(b)Continuous days of low sunlight resulting in insufficient power to the goods.
(c)1 in 20-year storms or similar events.
(d)Other conditions or circumstances consistent with the application of this clause.
5.5.2 In such circumstances we reserve the right to pause or shut down the Services (or any part of the Services) for a temporary period to either rectify the situation, protect the Goods/Services and/or wait for the event/s to pass. We will also endeavour to notify you of this interruption and any decision to pause Services in advance.
5.5.3 We will not be liable for any loss or damage suffered by you as a result of our exercise or attempt to exercise our rights under this Section.
5.6 Access
5.6.1 You warrant that you will obtain the permission of the Landlord or Registered Proprietor (if and as applicable) and the consent of any third party that may be required (by their terms or by law) so that we or our agent/contractor can enter upon the land, premises, property or site for the purposes of any of the following:
(a)Needs assessments and site scoping;
(b)Delivery of goods;
(c)Repairs and maintenance and problem solving;
(d)Viewing and showing of goods to other potential customers;
(c)Servicing, software upgrades and warranty services;(d)Installation by us if agreed under Clause 4.2; and
(e) Adjustments and monitoring under Clause 5.2.
5.6.2 Where said permission or any consents have not been obtained, you agree to indemnify us against
any costs arising from your breach of Subclause 5.4.1.
5.4.2 On the date of any site visit by ourselves or our agent or contractor you agree that we shall have
unrestricted access to the property for the purposes listed in these Terms of Trade. We agree to
not interfere with the day-to-day operation of the property beyond what is reasonable to
complete the purposes of our or our agents/contractor being on the property.
5.7 Term
5.7.1 Unless earlier terminated for breach, the Services continue from the date the Goods are correctly
delivered and/or installed to the expiry of the term specified in the Estimate where applicable.
5.7.2 Upon expiry of a term in Subclause 5.5.1, the Services will automatically renew on terms no less
favourable to us and continue on a monthly or annual periodic basis consistent with the previous
term that is expiring which can be terminated by either party providing written notice to the other
party. The Services will then terminate at the end of the month following receipt of the said notice.
6 Termination Generally
6.1 Termination
6.1.1 In the event that:
(a) these Terms of Trade and the Services are terminated for any reason, any payments made
by you to us will not be refunded and we may repossess the Goods if title in the Goods has
not passed to you in accordance with Clause 5.4 as applicable.
(b) the Services are terminated within 2 years of the installation of the Goods an early
cancellation fee may be payable by you to us.
7 Warranties and Limitation of Liability
Read this Section Carefully
Unless we otherwise agree specifically in writing, this Section 7 provides our default warranty.
7.1 Warranty for Goods
7.1.1 We warrant that the Goods supplied by us will be fit for the purpose of which you have notified us
and to which we have agreed in writing and will be of merchantable quality and that our supply
and installation (where requested by you and agreed to by us) of the Goods will be carried out in
a good and workmanlike manner.
7.2 Warranty for Services
7.2.1 We warrant that the Services will be supported by:
(a) Up to an initial thirty days of phone based support free of charge following delivery of
goods after which a services fee may apply for support and fault resolution.
(b) Sufficient people and reasonable practices to resolve technical issues or disruptions as
soon as practicable where the technical issue or disruption relates only to the software
solutions developed and provided by us and you have notified us of the technical issue or
disruption.
(c) Where the technical issue or disruption relates to:
(i) Electronic devices that we have not provided to you or changes to an electronic
devices’ operating system or other application that we have not developed or
provided;
(ii) Any third-party provider of services upon which the Services may rely (such as
contracted service or network providers for example);
(iii) The way in which you are using the software solutions provided by us, particularly
if contrary to the designed use; or
(iv) Force Majeure circumstances,
we will provide reasonable support to help you resolve the issue but are not required to
do so and Clause 7.4 applies.
(d) The ongoing development of on-device applications in a way that allows such applications to operate in an online and offline environment.
(e) The deployment of updates in a way that allows you to have reasonable notification of the update and to be in control of deploying the update to a device. Please note, if you do not update the device upon our deployment of the update, we do not warrant the ongoing reliability of any Services which rely on the device or software being updated.
(f) The ongoing maintenance and improvement of the software solutions provided by us to account for changes in the industry and which we at our sole and absolute discretion consider appropriate for the operation of the software.
7.3 Right to Remedy
7.3.1 We will repair or make good any substantiated defect in the Goods or our workmanship in supplying the Goods provided written notice of the claim is made by you immediately after any defect is suspected by you. We will investigate the claim as soon as practicable and if we agree that the claim is substantiated, we will repair or replace the non-conforming parts at our cost and as expediently as is practicable. Replacement of the Goods and travel time and related expenses may be at your cost if it is found any defect is not covered under your warranty with such being determined by us at our sole and absolute discretion.
8.3.2 If we fail to perform our warranty obligations under this Section, liability for such failure shall be subject to the limitations contained in Clause 7.4.
7.4 Limitation of Liability
7.4.1 Except as otherwise agreed in writing, any and all conditions, guarantees, warranties or representations including but not limited to those which might otherwise be implied by law, trade, custom or otherwise are expressly excluded to the maximum extent permitted by law. In particular, and without limitation:
(a) All implied terms, conditions and warranties under Part 3 of the Contract and Commercial Law Act 2017 are expressly excluded;
(b) The provisions of the Consumer Guarantees Act 1993 are excluded to the maximum extent permissible by law; and
8 Privacy
8.1.1 You authorise us to collect and hold your and/or your related parties’ personal information, including any information captured by the Goods (such as snapshot images for example) on the property and from any other source, to be used and disclosed for the following purposes:
(a) Administering, whether directly or indirectly, Orders including the Services and enforcing our rights accordingly;
(b) Ascertaining at any time your creditworthiness and obtaining at any time credit reports, character references or credit statements;
(c) Enabling us to notify any credit reporting agency of any application for credit or default on any obligation of yours to us and to provide such personal information to any credit agency so such credit agency can maintain correct records;
(d) Enabling you to communicate with us for any purpose;
(e) To any other entity in which we have a beneficial interest to enable such entity or entities to support us in the provision of Goods and/or Services;
(f) Provision to you of marketing materials and other products;
(g) Setup and maintenance of the Services;
(h) Three months of support monitoring under Subclause 5.1.1(c);
(i) Problem and fault diagnosis; and/or
(j) Any other purpose deemed consistent with the provision of Goods and/Services by us.
8.1.2 If you do not allow us to collect and use personal information, we may be unable to provide the Goods and/or Services.
8.1.3 Where you are an individual, the authorities under Subclause 8.1.1 above are authorities or consents for the purposes of the Privacy Act 2020.
8.1.4 In this Section 8, “related parties” means any guarantor of your obligations to us and, if you are a company, trust, and/or limited partnership, then your directors, shareholders, trustees, limited partners, and/or general partners (and the general partner’s directors and shareholders) as required or as applicable.
8.1.5 Information collected from the Goods and/or Services may be used at our sole and absolute discretion, including the provision of such information to government agencies.
9 Intellectual Property
9.1 Intellectual Property
9.1.1 All intellectual property rights and interests in the Goods and/or Services remain our sole property and do not pass to you under any circumstances.
10 Dispute Resolution
10.1 Good Faith Negotiations
10.1.1 Before taking any court action, you and we will use our best efforts to resolve any dispute under or in connection with these Terms of Trade through good faith negotiations.
10.1.2 Notwithstanding Subclause 10.1.1, we may initiate debt recovery action including but not limited to the commencement of court proceedings for non-payment of invoices at any time and you agree to indemnify us for costs of recovery including but not limited to legal costs, interest charged, collection costs (including any barristers costs or charges by a debt collection agent), court fees and any costs of enforcement incurred by us and any debt recovery fees, which can be incurred at our sole discretion without any reference to you.
10.2 Right to Seek Relief
10.2.1 This Section 10 does not affect our right to seek urgent interlocutory and/or injunctive relief:
(a) in any other court, orders granting interim relief or interim protective measures in support of proceedings to be brought before a New Zealand court; or
(b) to enforce a New Zealand judgment in any other country.
11 Definitions and Interpretation
11.1 Definitions
In these Terms of Trade, unless the context indicates otherwise:
11.1.1 “Business Day” means the days on which we are open for ordinary business but does not include Saturday, Sunday or a nationally recognised public holiday.
11.2.2 “Business Hours” means the hours between 8am and 5pm on any Business Day.
11.1.3 “Default Event” means you:
(a) Fail to pay us by the due date for payment of the Establishment Cost and/or Services Fee;
(b) Breach any of the provisions of these Terms of Trade;
(c) Require regular visits from us to assist with the provision of Services to the extent that it is uneconomical for us to continue offering Services to you;
(d) Become insolvent or is adjudged bankrupt;
(e) Cease or threaten to cease trading;
(f) Have a receiver, liquidator, official assignee or statutory manager appointed over any of your assets; or
(g) Have any other event occur which gives us reasonable cause to believe that you may fail to meet your obligations to us.
11.1.4 “Establishment Cost” means the cost associated with obtaining and delivering to you the Goods so that the Services may commence and does not include costs associated with installation of the Goods on your property.
11.1.5 “Force Majeure” means vis major, or an event, or an action that will give rise to a breach from an act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, World Health Organisation pandemic (whether accepted by the New Zealand government or otherwise or the government of the Customer’s jurisdiction), prevention from or hindrance in obtaining any financial instrument or other supplies, civil war, rebellion, revolution, insurrection, military or
usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, bank intervention (including but not limited to freezing of accounts, refusal by a bank to release or move funds on a Party’s instructions, sanctions, injunctions or other forms of sanction or estoppel against the bank itself, failure or
insolvency of the said bank), labour disputes of whatever nature and any other reason beyond our control.
11.1.6 “Goods” means any goods or materials sourced, produced or supplied by us that is to be installed on the site specified by you and agreed by us as part of, incidental to or independently of the Services we will provide to you.
11.1.7 “GST” means Goods and Services Tax per the Goods and Services Tax Act 1985.
11.1.8 “Order” means an order, request or instructions for Goods, their delivery at a site specified by you and agreed to by us and/or the provision of Services from us to you.
11.1.9 “Services” means the services provided by us on an ongoing basis as recorded in Clause 5.1.
11.1.10 “Services Fee” means the monthly ongoing fee you have agreed to pay to us for the provision of the Services and any other ongoing services or support fees that may be chargeable.
11.1.11 “Terms of Trade” means these terms of trade and includes any schedules, invoices, quotations, estimates and documents referred to in these Terms of Trade.
11.1.12 “You” or “Your” means the person seeking Goods and/or Services from us.
11.1.13 “We”, “us” or “our” means Farmgate Security Limited being a duly registered company in New Zealand, with NZBN No 9429049569858.
11.2 Interpretation
11.2.1 Binding: These Terms of Trade bind you, your employees, representatives, agents, assigns and successors.
11.2.2 Clauses: References to Clauses, Subclauses or Paragraphs are references to these Terms of Trade’s Clauses, Subclauses or Paragraphs.
11.2.3 Headings: Headings are for ease of reference only and do not form any part of the context or affect the interpretation of these Terms of Trade.
11.2.4 Plural and Singular: Singular words include the plural and vice versa.
11.2.5 Persons: References to persons include references to individuals, companies, corporations, firms, partnerships (limited or otherwise), joint ventures, associations, organisations, government departments, trusts, municipal authorities, state owned enterprises, in each case whether or not having separate legal personality.
11.2.6 Statutes and Regulations: References to any statutory provision include any statutory provision which amends or replaces it, and any subordinate legislation made under it.
12 General Terms
12.1 Acknowledgements
You acknowledge and accept that:
(a) we do not guarantee nor warrant that your site will not be burgled.
(b) we supply technologies for the purposes of vehicle access control, security and visibility. We are not actively involved in crime detection and our technologies are not supplied specifically for this purpose although it may be a byproduct of use by you in some cases.
(b) stolen vehicle if identified are flagged and notified to the NZ Police and the local community.
(c) vehicles registered as being stolen may be automatically prohibited from entry to the property subject to the type of technology installed on the property.
(d) list updates of known, denied or stolen vehicles may not be automatically applied and is subject to the timing of list updates from external providers and data connectivity and software constraints;
(e) we are not responsible for damage to any vehicle as a result of a barrier arm falling or closing on a vehicle or other moving object.
(f) strobe lights may cause seizures; powerful spotlights may cause temporary blindness; and loud sirens may cause distraction/surprise/shock and/or disorientation, and shall hold us harmless accordingly.
12.2 Amendment to Terms of Trade
We reserve the right to amend these Terms of Trade from time to time. Notice of any amendments will be deemed to be delivered by way of updating the Terms of Trade on our website at: <www.farmgate.co.nz/terms-of-trade>.
12.3 E&OE
We shall not be bound by any error or omission made by us on any invoice, quotation, estimate, Order or any other document issued by us.
12.4 Force Majeure event
12.4.1 In the case of a Force Majeure event, we will not be in breach of our obligations or responsibilities under these Terms.
12.4.2 We will endeavour to notify you of a Force Majeure event.
12.4.3 The operation of these Terms of Trade (but not those under Clause 12.9) will be suspended during the period (and only during the period) in which the said Force Majeure reason continues, provided that:
(a) Immediately upon the Force Majeure reason ceasing to exist the party relying upon it must give written advice to the other of this fact.
(b) If the reason continues for a period of more than sixty (60) Business Days and/or substantially affects the commercial basis of the Order between us and you, the parties agree to consult together for the purposes of agreeing what action should be taken in the circumstances and, if appropriate, must negotiate in good faith to amend and modify appropriately the provisions and terms of the Order as necessary to deal with the reason for the inability to perform. If such negotiations are unsuccessful the party not claiming relief under this clause may terminate the Order upon giving twenty
(20) business days written notice of such termination to the other party.
12.5 Governing Law
12.5.1 These Terms of Trade are governed in accordance with the laws of New Zealand and any dispute under these Terms of Trade or action against us shall be subject to the exclusive jurisdiction of all Courts of New Zealand.
12.5.2 You accept that any proceedings issued against us may only be filed and heard in Hamilton, New Zealand and hold us harmless accordingly.
12.6 Notices
Any notice or other communication given under these Terms of Trade must be in writing and must be served by one of the following means, and in respect of each is deemed to have been served as described:
(a) By personal delivery – when received by the other party;
(b) By post via registered or ordinary mail to the other party at their usual or last known place of residence or address – on the third working day following the date of posting; or
(c) By sending via electronic mail to the other party at their usual or last known email address – immediately upon clearing from the sending party’s outbox provided that a non-delivery report is not received by the sending party.
12.7 No Assignment
You may not assign any of your rights or obligations under these Terms of Trade without our prior written consent.
12.8 No Partnership
12.8.1 Nothing contained in these Terms of Trade will be deemed or construed to constitute any party to be a partner, agent or representative of any other party, or to create any trust or commercial partnership.
12.8.2 We are not affiliated with the NZ Police or any other government agency.
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12.9 Obligations to Survive Termination
Sections 3 (Payment), 7 (Warranties and Limitation of Liability), 8 (Privacy), 9 (Intellectual
Property), 11 (Definitions and Interpretation) and Clauses 12.1, 12.4, 12.5, 12.6, 12.9, 12.10 and 12.12 survive the termination of these Terms of Trade.
12.10 Severability
If any provision of these Terms of Trade shall be invalid or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired and will remain enforceable to the greatest extent permitted by law.
12.11 Signatories
Where you are a company, trust, or limited partnership, each of the directors, trustees, or general partner(s) or directors of the general partner(s) personally guarantee your obligations under these Terms of Trade (jointly and severally) particularly those who have placed an Order with us.
12.12 Waiver
No failure, forbearance or delay by us to exercise any right, power or remedy under these Terms of Trade will operate as a waiver of that right, power or remedy. A waiver of any right, power or remedy will not be effective unless that waiver is in writing from us. A waiver of any right arising from any breach of these Terms of Trade by you will not be a continuing waiver of the right in relation to any other or subsequent breach.