1.1. These terms and conditions (Terms) apply to all Customers purchasing Goods from Fargo Group Limited (Fargo) and to all Customers that have a Fargo Account on or after 13 October 2023.
2.1. Definitions: For the purposes of these Terms, unless the context requires otherwise, the following definitions shall apply:
Account Application Form means Fargo’s credit account application form completed by a Customer for a Fargo Account.
Account Holder means a Customer that has applied for, and been granted a Fargo Account and where the context permits, is deemed to include those for whom the Account Holder is responsible.
Credit Limit means the credit limit on a Fargo Account specified from time to time by Fargo in its sole discretion.
Default Interest Rate means the then current Official Cash Rate plus 10%.
Delivery has the meaning provided in clause 6.1.
Due Date means the 20th day of the month following the date of a Statement, or if the Customer does not have a valid Fargo Account, then a date determined pursuant to clause 5.4.
Fargo Account means the credit account with Fargo created in accordance with these Terms or otherwise, that may be used by the Account Holder.
Fargo Website means the website available at the domain www.fargo.co.nz.
Force Majeure Event means any event or circumstance beyond the reasonable control of a party, including any:
a) action by any government, governmental agency or other external agency, including any change in applicable law;
b) civil disturbance or disorder, industrial action, civil disorder, any labour disruption;
c) epidemic or pandemic;
d) damage, loss, destruction or theft of or to goods, caused or contributed to by any person other than Fargo;
e) equipment failure, banking or computer system disruption or interruption of power supplies, internet or other utilities;
f) supply chain issues, shipping delays and availability of contractors and/ or labourers; or
g) natural disaster or emergency, adverse weather (including, rain, wind or fog), fire, flood, tsunami, storm, tempest, earthquake or other act of God, nature, contamination, war or government.
Goods means all goods available for purchase by the Customer from Fargo from time to time.
Guarantor means any person or entity that provides a guarantee to Fargo in relation to a Customer.
Maximum Threshold means consideration of $24,000 (including GST) in any annual period.
Order means a request from a Customer for an order for Goods placed by the Customer with Fargo on a purchase order or otherwise communicated to Fargo in accordance with clause 3.3 and includes, without limitation:
a) sales of Goods by Fargo to the Customer; and
b) Goods supplied by Fargo to the Customer charged to a Fargo Account.
Price means the price payable by the Customer to Fargo for the Goods comprised in an Order that has been accepted by Fargo, calculated in accordance with clause 5.1 and set out in an invoice or Statement, together with any other amounts payable by the Customer pursuant to these Terms.
Small Trade Relationship means a trading relationship between the Customer and Fargo which was less than the Maximum Threshold when the trading relationship first arose.
Statement means the monthly account statement issued by Fargo in respect of a Fargo Account.
Standard Charges means the Fargo standard charges for Goods that apply from time to time, and which may be varied in accordance with clause 5.2.
Working Day has the meaning set out in the Companies Act 1993.
2.2. References: For the purposes of these Terms, unless the context requires otherwise, or specifically stated, reference to:
a) the plural includes reference to the singular, and vice versa;
b) words importing one gender includes all genders;
c) any law, legislation, or legislative provision includes any statutory modification, amendment, or reenactment, and any subordinate legislation or regulations issued under that legislation or legislative provision whether before or after the Effective Date;
d) any agreement will include any agreement which amends or replaces it;
e) reference to a party, person(s) or entity includes without limitation:
f) times or a time of day are references to New Zealand times;
g) dollars, NZD and $ means New Zealand Dollars; and
h) ‘including’ (and its similar expressions) shall be interpreted as if followed by ‘without limitation’.
2.3 Headings: Headings inserted in these Terms are for convenience of reference only and do not affect the interpretation of these Terms.
2.4 Rights: Unless the context requires otherwise, or specifically stated in these Terms, a right or power specified in these Terms may be exercised at any time.
2.5 Negative obligations: Any obligation not to do anything will be deemed to include an obligation not to suffer, permit or cause that thing to be done.
2.6 Time period: If a period of time is specified as being from a given day or the day of an act or event, it is to be calculated as excluding that day.
2.7 Rights and remedies: Any rights and/or remedies specified are without prejudice to any other rights and/or remedies whether available pursuant to these Terms or at law.
2.8 No Contra Proferentem Rule: None of the terms nor any of the parts of these Terms are to be construed against a party, by reason of the fact that a term or part was first proposed or was drafted by that party.
3.1. Enquiries: If the Customer wishes to purchase any Goods from Fargo the Customer must contact Fargo to discuss their requirements.
3.2. Estimates and quotes: Fargo may provide pricing, quotes and/ or estimates to the Customer from time to time. Pricing and estimates are estimates only, are not binding on Fargo and may be varied or withdrawn by Fargo at any time. A quote shall be valid for the period of time specified in the quote or if no timeframe is specified then a quote shall be valid for 30 days.
3.3. Orders: The Customer may place an Order with Fargo in writing (which may be by email, text message, or delivery of a purchase order physically or by email) or verbally (which may be by phone call) from time to time. An Order must clearly identify the Goods ordered and a Fargo quote or estimate number (if applicable). Any costs incurred by Fargo in reliance on incorrect or inadequate information provided by a Customer in an Order may result in further costs to be paid by the Customer.
3.4. Acceptance: The Customer acknowledges that acceptance of an Order (in whole or in part), and the supply by Fargo of Goods is subject at all times to Fargo’s sole discretion. If Fargo accepts an Order, Fargo will confirm such acceptance in writing or other method acceptable to Fargo from time to time. Subject to these Terms, Fargo are under no obligation to commence any work until an Order has been accepted.
3.5. Lead times: Fargo will use reasonable endeavors to source all Goods that are subject to an accepted Order, but Fargo does not guarantee supply. The supply of Goods by Fargo may be subject to ordering and/or manufacturing lead times. Fargo will use all reasonable endeavours to advise the Customer of any applicable lead times that apply. Any lead times advised by Fargo are estimates only.
3.6. Cancellation by Fargo: The Customer acknowledges that Fargo’s agreement to supply the Goods does not guarantee the availability and supply of the Goods and Fargo may cancel an Order where Goods are unable to be supplied. Fargo shall likewise not be liable to the Customer for any loss whatsoever arising out of the unavailability of Goods.
3.7. Cancellation or variation by the Customer: Once an Order is accepted by Fargo it cannot be cancelled or varied without Fargo’s prior written consent.
3.8. Onselling: The Customer must not onsell the Goods to any third party retailers without Fargo’s prior written consent.
4.1. Application: A Customer may apply to be an Account Holder with Fargo. If a Customer submits an Account Application Form, Fargo will review such application, but the acceptance of which is in Fargo’s sole discretion.
4.2. Information: The Customer shall provide the Account Application Form, together with all information set out in the Account Application Form and otherwise requested by Fargo, to Fargo.
4.3. Due diligence: The Customer authorises Fargo to do the following, either at the time that the Customer provides the Account Application Form to Fargo, or at any later date:
a) Conduct all credit checks, make enquiries, collect all and any information from and disclose such information to third parties, and undertake any searches in relation to the Customer’s credit, financial and business affairs and history as is reasonably required to assess the Customer’s credit position and as otherwise deemed necessary by Fargo from time to time;
b) Contact third parties to disclose to Fargo such information as Fargo may reasonably require from time to time in respect of the above authorisations; and
c) Undertake the same due diligence as set out in subsections (a) and (b) above in respect of any Guarantor of the Customer, and the Customer agrees to procure any authorisation from the Guarantor necessary for such due diligence to be completed.
4.4. Acceptance: If Fargo accepts (in its sole discretion) the Account Application Form (in full or in part), Fargo will notify the Customer of such acceptance and the Account Holder agrees that:
a) It is the sole responsibility of the Account Holder to ensure there is no unauthorised use of its Fargo Account
b) The Account Holder agrees that Fargo may, at any time by providing notice to the Account Holder, suspend, cancel, withdraw, alter the terms of the Fargo Account, or impose or revise a Credit Limit in respect of, or vary the invoicing or payment terms therein; and
c) The Account Holder agrees not to exceed the Credit Limit of their Fargo Account.
4.5. Cancellation and suspension: Any Fargo Account may be suspended, made inactive or placed on hold by Fargo at any time, without any requirement to notify the Account Holder. Fargo Accounts may be cancelled by Fargo at any time by notifying the Account Holder in writing.
4.6. Effect of cancellation or suspension: Suspension or cancellation of a Fargo Account does not affect the liability of the Account Holder in respect of the then current balance of the Fargo Account or any other amounts owing by the Customer. Upon suspension or cancellation of a Fargo Account:
a) The Account Holder will not be permitted to debit or incur any new charges on a Fargo Account;
b) Fargo may apply any additional charges to the suspended or cancelled Fargo Account;
c) Fargo will issue a final Statement in respect of the cancelled or suspended Fargo Account; and
d) The Account Holder must immediately pay any amount set out in the final statement (including any interest as set out in the final statement).
4.7. Interest: Interest shall accrue at the Default Interest Rate on all amounts that are due and payable by the Customer.
5.1. Price: The Customer agrees to pay the Price for the Goods supplied or agreed to be supplied by Fargo. The Price for the Goods shall be calculated in accordance with Fargo’s Standard Charges as at the time the relevant Order is accepted by Fargo, unless the Order is based on a quote which remains valid at the time the Order is placed, or Fargo have otherwise agreed in writing, in such cases those Prices shall apply.
5.2. Price variation: The Standard Charges for the Goods may be varied by Fargo from time to time.
5.3. GST: All amounts are exclusive of and plus GST (if any), which shall be paid by the Customer.
5.4. Payment: If the Customer does not have a valid Fargo Account or the Customer has a valid Fargo Account with insufficient credit available, the Customer shall pay each invoice at the time that the Order is accepted by Fargo or in accordance with the terms on the invoice, using a payment method acceptable to Fargo. Fargo may at any time require the Customer to pay a non-refundable deposit or the full amount of the Order, as part or full payment of the Price or as otherwise agreed by Fargo from time to time, prior to Fargo accepting the Order.
6.1. Delivery: Delivery of all Goods shall occur as follows (Delivery):
a) where it is agreed that the Customer is collecting the Goods from Fargo, Delivery shall occur when the Customer takes the lawful possession of the Goods from Fargo’s nominated collection point; or
b) where it is agreed that the Goods are being delivered to the Customer by a third party (whether arranged by Fargo or the Customer), Delivery shall occur when the third party takes lawful possession of the Goods from Fargo’s nominated point of collection; or
c) where it is agreed that Fargo is delivering the Goods to the Customer, Delivery shall occur when the Goods are delivered to the Customer’s nominated address for delivery.
6.2 Delivery fees: Unless otherwise agreed, all costs associated with the delivery and collection of Goods are payable by the Customer, whether Delivery is arranged by the Customer, Fargo or a third party.
6.3 No liability: Fargo is not responsible or liable for the acts and/or omissions of any third party engaged by the Customer to collect the Goods, and the Customer is responsible and liable to ensure that the means of collection of the Goods is suitable in all respects.
6.4 Inspection: The Customer must immediately inspect all Goods on Delivery, and advise Fargo of any damage or other failure to comply with any warranty as set out in clause 8.
7.1. Risk: Risk in the Goods shall pass to the Customer on Delivery and the Customer is responsible for adequately insuring the Goods from Delivery.
7.2. Title: Fargo retains title in and to all Goods supplied to the Customer, until such time that the Customer has paid for those Goods in full, and the Customer has complied with all of its obligations in respect of those Goods pursuant to these Terms. The Customer may, however, sell Goods to its own customers (Third Party Customers) in the ordinary course of business and in that case:
a) ownership of the Goods will vest in the relevant Third Party Customer; bu
b) the proceeds of the sale of the Goods will belong to Fargo; and
c) the Customer must hold the proceeds in trust as a fiduciary for Fargo until Fargo receives payment.
7.3. Obligations: Until the Customer has fully paid for the Goods in full, the Customer agrees that:
7.3.1. the Customer holds the Goods solely as bailee for Fargo and the Customer will store the Goods separately and in such a way that it is clear that they are the property of Fargo;
7.3.2. Fargo and its agents shall have the right to enter the premises where the Goods are being stored at any reasonable time to inspect the Goods and ensure compliance with these Terms; and
7.3.3. if the Goods are stored at the premises of a third party, the Customer will obtain the consent of that third party to Fargo’s entry onto the premises for this purpose. The Customer shall pay all costs incurred by Fargo in respect of obtaining such entry right, including all legal costs (as between solicitor and client).
7.4 Security interest: The Customer grants to Fargo a security interest over all the Goods supplied to the Customer by Fargo, and all of the proceeds of sale in respect of those Goods, to secure payment of all amounts payable by the Customer to Fargo, and the performance of the Customer’s obligations, pursuant to these Terms.
7.5 Personal Property Securities Act 1999: The Customer waives any right to:
7.5.1. receive a copy of the verification statement, pursuant to s 148 of the New Zealand Personal Property Securities Act 1999; and
7.5.2 reinstate these Terms, pursuant to s 133 of the New Zealand Personal Property Securities Act 1999.
7.6 Cooperation: If required by Fargo, the Customer agrees to cooperate in good faith with Fargo to execute all documentation required to register any security interest in favour of Fargo on the Personal Property Securities Register and protect Fargo’s interest in the Goods.
7.7 No security interests: The Customer shall not sell, dispose of, part with possession of, charge, encumber, grant a security interest in or otherwise do anything else inconsistent with Fargo’s ownership of any Goods while Fargo retains ownership of or any other interest in those Goods.
7.8 Accessions: If the Goods that Fargo has a security interest in are processed, included or dealt with in any way causing them to be accessions, processed or commingled goods, Fargo’s security interest will continue in the whole in which they are included.
8.1. Returns: Subject to clause 8.3 below, all Goods purchased by the Customer are nonrefundable and non-returnable, unless otherwise agreed in writing by Fargo. Where Fargo agrees in writing to return any Goods purchased by the Customer, the Customer shall be solely responsible for the cost of retuning the Goods and any fees charged by Fargo in relation to the returned Goods, including but not limited to a restocking fee.
8.2. Third party Goods: With respect to the sale of Goods that are new, and are manufactured by a third party and resold by Fargo to the Customer:
8.2.1. Fargo will use its reasonable endeavours to pass on the benefit of any associated manufacturer warranty to the Customer. For the avoidance of doubt, Fargo does not to the extent permitted by law, give warranties in addition to those provided by the original manufacturer (if any); and
8.2.2. Fargo will provide reasonable assistance where the Customer wishes to make a claim against a manufacturer’s warranty.
8.3. Fargo warranty for Goods: Unless otherwise agreed by Fargo in a separate warranty document, Fargo warrants that Goods will match the specifications of the Goods provided by Fargo to the Customer upon delivery.
8.4. Consumers: If the Customer is not in trade and does not enter into these Terms for a business purpose, then these Terms do not restrict the Customer’s rights and remedies set out in the Consumer Guarantees Act 1993 (CGA).
8.5. Business Customers: Where the Customer is in trade, and is purchasing Goods from Fargo for a business purpose, to the extent permitted by applicable law:
a) the parties agree that the CGA shall not apply to the sale of Goods;
b) except as expressly set out in these Terms or otherwise agreed in writing with Fargo, the Goods are provided by Fargo on an “as is” basis, without any guarantee, warranty, condition or representation (whether express, implied by law, statute, trade custom or otherwise) including without limitation in relation to quality, merchantability, suitability for purpose, ownership, or otherwise of the Goods, whether pursuant to the Contract and Commercial Law Act 2017, applicable law or regulations, or otherwise;
c) the Customer agrees and acknowledges that the Customer enters into these Terms solely in reliance upon its own judgment as to the quality, durability and fitness of the Goods for the Customer’s purposes;
d) the Customer agrees that their exclusive remedy pursuant to any claim for breach of warranty set out in this clause 8 is limited to the repair or replacement of the applicable Goods, or the provision of a credit or refund (whether in full or in part), as determined by Fargo in its sole discretion.
8.6. Warranty claims process: If the Customer considers that Fargo has breached any warranty set out in these Terms or separately agreed with Fargo, whether in respect of any errors, omissions or defects of Goods, the Customer must provide notice in writing to Fargo, quoting relevant invoice numbers, within seven days of Delivery of the Goods. If Fargo or any manufacturer agrees that they have breached any warranty, all repairs, returns or replacements must be undertaken by and in accordance with the instructions of Fargo.
9.1. General: The Customer will comply with:
9.2. Health and safety: The parties acknowledge their respective duties and responsibilities under the HSWA, and agree to comply with them. The parties will work cooperatively with each other in respect of any aspects where the parties have overlapping duties or obligations. The parties agree that they will consult with each other regularly to identify hazards and risk of harm at each Workplace (as defined in HWSA), and where hazards or risk of harm has been identified, to each incorporate these into their respective health and safety procedures and protocols to minimise the risk of harm or hazard as appropriate.
10.1. Events of default: The Customer will be in default if:
a) the Customer fails to pay any amounts due to Fargo on or prior to the Due Date;
b) the Customer breaches any of its material obligations under these Terms that:
i) cannot be remedied; or
ii) can be remedied but has not been within five Working Days of the Customer receiving written notice of the default from Fargo;
c) the Customer has a liquidator or receiver appointed, a resolution to place it in liquidation is passed or proposed, is adjudged bankrupt, enters voluntary administration, has a statutory manager appointed, enters debt hibernation, is wound up or struck off the applicable register, is unable to pass the solvency test as defined in the Companies Act 1993, reasonably appears insolvent, cannot pay their debts as they fall due, enters into a scheme or arrangement with their creditors, or any analogous arrangement or procedure in any jurisdiction; or
d) where the Customer is an individual, the Customer dies, or suffers illness or total permanent disablement to the extent that they cannot perform their obligations under these Terms.
10.2. Remedies on default: If the Customer is in default of these Terms pursuant to clause 10.1, Fargo may, in its sole discretion and without prejudice to its other rights and remedies, do any one or more of the following:
a) charge interest at the Default Interest Rate on all amounts due but unpaid, calculated on a daily basis from the Due Date until Fargo receives payment in full;
b) reject, suspend or terminate any pending Orders for Goods;
c) suspend or terminate these Terms;
d) terminate any Fargo Account;
e) appoint a receiver in respect of any Goods or other collateral subject to a security interest or other security and such receiver is authorised to exercise all of Fargo’s rights pursuant to these Terms, and exercise all usual and customary rights and powers conferred on a receiver by law and the Receiverships Act 1993, to recover any monies owed by the Customer to Fargo;
f) take legal action to recover the amounts owing, appoint a collections agent, receiver or other third party to collect the amounts owing;
g) enforce any security held for the benefit of Fargo, including without limitation any guarantee or Security Interest(s); and
h) exercise any rights that Fargo has under these Terms or that are otherwise available at law, and all costs and expenses associated with such (including legal costs as between solicitor and client), shall be paid by the Customer in addition to the amount owing.
10.3. Obligations on default: In the event these Terms are terminated, then:
a) if the Customer is a Fargo Account holder, their Fargo Account will be cancelled, and a final Statement issued and immediately payable by the Customer;
b) all monies payable by the Customer under these Terms, if they are not already due for payment, shall be accelerated so they are immediately due for payment; and
c) the Customer shall immediately pay all amounts due and payable by the Customer to Fargo pursuant to these Terms.
10.4. Without prejudice: The rights and remedies set out in this clause are without prejudice to any other rights and remedies available to Fargo against the Customer or Guarantor whether pursuant to these Terms, at law or otherwise.
11.1. Indemnity: The Customer indemnifies Fargo in respect of all liabilities, costs and expenses (including without limitation full costs between solicitor and client), claims or demands incurred by Fargo or any third party resulting from any acts or omissions of the Customer, the Customer’s breach of these Terms or arising out of or incidental to the use of the Goods except where such liabilities, costs, claims and demands are the result of gross negligence of Fargo.
11.2. Restricted Liability: Notwithstanding anything else in these Terms, Fargo will not be liable whatsoever to the Customer for any indirect loss, consequential loss, loss of profit, loss of bargain, loss of business opportunity or exemplary damages suffered by the Customer or any other person, whether flowing from any precontractual misrepresentation, forecast or breach of these Terms or not, whether contemplated by these Terms or not, and whether actionable in contract, tort (including negligence), equity or otherwise.
11.3. Maximum liability cap: In the event that, despite the proviso in the preceding clause 11.2 Fargo is found liable for any loss, including without limitation loss set out in the preceding clause 11.2, then, to the maximum extent permitted by law, such liability will be limited to the lesser of:
a) the amount paid or payable by the Customer for the applicable Goods to which the claim relates; or
b) the amount paid or payable by the Customer to Fargo for Goods provided in the three month period prior to the date on which the matter giving rise to the relevant claim first arose.
11.4. Liability Small Trade Relationship: Excluding a breach by the Customer of clauses 12 or 13, where the Customer has a Small Trade Relationship with Fargo, clause 11.1 and clause 11.2 shall not apply. The following liability applies to Small Trade Relationships entered into between Fargo and the Customer:
11.4.1 Neither party will be under any liability whatsoever to the other for any indirect loss, consequential loss, loss of profit, loss of bargain, loss of business opportunity or exemplary damages suffered by either party or any other person, loss arising out of or flowing from any pre-contractual misrepresentation, forecast or breach of these Terms, whether contemplated by these Terms or not, and whether actionable in contract, tort (including negligence), equity or otherwise.
11.4.2 If, notwithstanding clause 11.4.1, Fargo is found liable to the Customer for any loss, then, to the maximum extent permitted by law, such liability will be limited to the lesser of:
I. the amount paid or payable by the Customer for the applicable Goods to which the claim relates; or
II. the amount paid or payable by the Customer to Fargo for Goods provided in the three month period prior to the date on which the matter giving rise to the relevant claim first arose.
12.1. Intellectual property: Each party shall retain ownership of their respective intellectual property rights existing on execution of these Terms, or created by a party during the Term that is not related to these Terms. Any new intellectual property rights created by Fargo during the Term in relation to the Goods shall be owned by Fargo. The Customer shall not copy or use any of Fargo’s intellectual property rights without Fargo’s prior written consent.
13.1. Confidentiality: All intellectual property and other information belonging to the parties which by designation or by its nature is intended to be treated as confidential (including but not limited to these Terms) will be confidential information for the purposes of these Terms (Confidential Information).
13.2. Disclosure: The Customer will not without the prior written consent of Fargo, use or disclose to any third party any of Fargo’s Confidential Information, except as reasonably required to enjoy the Goods purchased, as required pursuant to law or a Court of competent jurisdiction.
14.1. Personal information: The Customer authorises Fargo, or any financier or credit-rating agency, to:
a) collect, retain and use information about the Customer from any person for the purpose of assessing the Customer’s creditworthiness;
b) disclose information about the Customer:
I. to any person who is a Guarantor, or who provides insurance, or who provides any other credit support, in relation to the Customer’s obligations to Fargo;
II. to such persons as may be necessary or desirable to enable Fargo to exercise any power or enforce or attempt to enforce any of Fargo’s rights, remedies and powers under these Terms.
14.2 Electronic messages: The Customer agrees that Fargo may provide all general communications, including the provision of invoices and statements, to the Customer’s nominated email address, and a physical copy is not required to be posted. In addition, the Customer consents to Fargo providing electronic marketing messages to the Customer, unless the Customer opts out by notifying Fargo in writing or unsubscribing.
14.3 Privacy questions: If the Customer, or those for whom the Customer is responsible, have any questions regarding privacy at Fargo, they may contact Fargo at admin@fargo.co.nz.
15.1. Negotiation: In the event of any dispute between the parties in relation to these Terms, the parties shall first seek to resolve such dispute by promptly giving notice of such dispute to all other parties (Dispute Notice) and cooperatively endeavouring to resolve such dispute. If the dispute remains unresolved 10 Working Days after the date that the last party was provided with a Dispute Notice, the dispute shall be referred to mediation (Referral Date).
15.2. Compulsory mediation: A party must use the mediation procedure set out in clause 15.3 to resolve a dispute before seeking resolution through arbitration.
15.3. Mediation procedure:
15.3.1 Appointment of mediator: The parties shall appoint a mediator and if they fail to agree within 10 Working Days after the Referral Date, the President of the New Zealand Law Society or the President’s nominee will appoint a mediator who is a panel member of the Resolution Institute
15.3.2. Co-operation with mediator: The parties shall co-operate with the mediator in an effort to resolve the dispute.
15.3.3 Engagement of expert opinion: The mediator may engage an appropriately qualified expert to give an opinion on technical matters. The cost will be a mediator’s cost pursuant to clause 15.3.6.
15.3.4. Settlement: If the dispute is settled, the parties shall sign a copy of the terms of the settlement.
15.3.5. Mediation to cease: If the dispute is not resolved within 15 Working Days after the date that the mediator was appointed, or within any extended time that the parties agree to in writing, the mediation shall cease.
15.3.6. Costs: Every party shall pay an equal share of the mediator’s costs, including without limitation the mediator’s fee, travel, room hire, refreshments, costs to obtain expert opinions, etc.
15.4. Arbitration: If the dispute remains unresolved within 20 Working Days of a mediator being appointed under clause 15.3.1, the same shall be submitted to the arbitration of one arbitrator who shall conduct the arbitral proceedings in accordance with the Arbitration Act 1996 or any other statutory provision then relating to arbitration. If the parties are unable to agree on the arbitrator, an arbitrator shall be appointed, upon request of any party, by the President of the New Zealand Law Society or the President’s nominee. That appointment shall be binding on all parties to the arbitration and shall be subject to no appeal. The provisions of Article 11 of the First Schedule to the Arbitration Act 1996 are to be read subject to this and varied accordingly.
15.5. Terms binding: The terms of settlement that has been signed by the parties will be binding on the parties.
15.6. Admissible evidence: The terms of settlement may be tendered in evidence in any arbitration or legal proceedings.
15.7. Inadmissible evidence: The parties agree that written statements given to the mediator or to one another, and any discussions between the parties or between the parties and the mediator during the mediation period are not admissible by the recipient in any arbitration or legal proceedings.
15.8. No unreasonable delay: Neither party shall unreasonably delay the dispute resolution procedures in this clause 15.
15.9. Exclusions: This clause 15 does not apply to:
16.1. Without notice: Fargo may amend these Terms without the Customer’s (acting reasonably) consent if Fargo considers that the amendment:
a) is minor;
b) is to correct an error;
c) is required to comply with any law or regulatory directive; or
d) will not have a material adverse effect on the Customer.
16.2. Other amendments: For all other changes not contemplated by clause 16.1, Fargo may vary these Terms by obtaining the Customer’s written consent, providing notice in writing to the Customer, or posting the varied Terms on the Fargo Website. The Customer’s continued ordering of Goods after the effective date of such varied terms will be deemed to be the Customer’s acceptance of the varied terms. If the Customer does not accept the varied terms, the Customer may cease placing any further Orders, or terminate these Terms by providing notice in writing to Fargo within 30 days after the date that the varied terms come into effect. On Fargo’s receipt of such termination notice, the varied terms shall not apply, and these Terms shall terminate once all Delivery has occurred and all amounts owed by the Customer to Fargo have been paid in respect of the last Order accepted by Fargo prior to receipt of such termination notice.
17.1. Subcontracting: Fargo may subcontract the performance of all or any part of its obligations pursuant to these Terms. The Customer shall not subcontract all or any part of its obligations pursuant to these Terms.
17.2. Without prejudice: Nothing in these Terms affects any other rights or remedies Fargo may have at law or in equity as against the Customer. Rights and remedies specified in these Terms are without prejudice to any other rights or remedies available to Fargo.
17.3. Governing Law: Subject to clause 15.1, these Terms shall be governed and interpreted in accordance with New Zealand law, and the New Zealand Courts shall have the non-exclusive jurisdiction to determine any dispute arising in relation to these Terms.
17.4. Notice method: Notices, communications, documents or demands required to be made or served pursuant to these Terms shall be in writing and signed by the party giving the notice or by any officer or solicitor of that party. Any notice or document shall be deemed to be duly given or made:
a) if delivered by hand, when so delivered;
b) if sent by post, on the fifth Working Day following posting; and
c) in the case of a communication by email, when sent (provided there is no indication of incomplete transmission) to the recipient’s last known email address. Fargo’s email address for service is admin@fargo.co.nz.
17.5. Assignment: The Customer shall not assign or otherwise transfer or encumber its rights or obligations under these Terms except with the prior written consent of Fargo. Where the Customer is a company that is not registered on any main board of a public stock exchange in New Zealand then any:
a) change in the legal or beneficial ownership of the Customer’s shares or the shares of its shareholder;
b) issue of new capital in the Customer or its shareholder; or
c) change in the effective management or control of the Customer, will be deemed to be an assignment of these Terms. Fargo can at any time assign or otherwise transfer, encumber or subcontract any of its rights and obligations under these Terms to a third party.
17.6. Force Majeure: Fargo will not be in breach of these Terms and will not be liable to the Customer or any Guarantor for costs, failure to perform, or delay in performing, its obligations pursuant to these Terms, attributable in whole or in part to a Force Majeure Event. Fargo may terminate these Terms by providing notice in writing to the Customer if a Force Majeure Event subsists for a period of 30 days or more. An obligation on the Customer to pay money, or the consequences of insolvency, or financial difficulty, are never excused by a Force Majeure Event.
17.7. Waiver: A party will not have waived or be deemed to have waived any provision of these Terms unless the waiver is in writing and signed by that party.
17.8. Survivorship: Termination of these Terms for any reason will not affect such rights and obligations of the parties as are intended to survive the termination.
17.9. No relationship: These Terms do not create any relationship of partnership, employment, agency or joint venture between the parties.
17.10. Severability: Should any part or provision of these Terms be held unenforceable or in conflict with any applicable laws or regulations, the invalid or unenforceable part or provision will be replaced with a provision which accomplishes, to such extent as possible, the original business purpose of the part or provision in a valid and enforceable manner, and the remainder of the Terms will be binding on the parties.
17.11. Entire agreement: These Terms constitute the entire agreement and understanding between the parties and supersedes all prior discussions and agreements covering the subject matter of these Terms. These Terms apply notwithstanding any provision to the contrary expressed or implied in any of the Customers terms of trade, purchase orders or other documents.
17.12. Counterparts: These Terms may be executed in counterparts (which may be electronic copies) and all of which, when taken together constitute the one document.
17.13. Electronic signatures: A party may sign these Terms or other document contemplated by these Terms by way of the application of that party’s electronic signature in accordance with Part 4 of the Contract and Commercial Law Act 2017.
