BACKGROUND
A. The Seller is a supplier of the Goods.
B. The Buyer wishes to buy the Goods from the Seller by Orders placed from time to time in order to resell the Goods within the Territory in accordance with this Agreement.
C. The Seller has agreed to sell and the Buyer has agreed to buy the Goods on the terms and conditions set out in this Agreement.
OPERATIVE PROVISIONS
1. DEFINITIONS
Agreement means this wholesale agreement for the wholesale supply of goods, including the Order Form.
Business Day means a day on which banks are generally open for business in New Zealand other than a Saturday, Sunday or public holiday.
Delivery Date means the date set out in Item 2 of the Order Form on which the Seller will use reasonable endeavours to deliver the Goods to the Buyer using the Third Party Delivery Provider.
Delivery means the delivery of the Goods from the Point of Delivery to the Delivery Location as stated under Item 3 of the Order Form.
Description of Goods means the description of the Goods set out in Item 7 of Order Form.
Force Majeure means a circumstance beyond the reasonable control of a Party and which results in that Party being unable to observe or perform an obligation on time under this Agreement (other than an obligation to make a payment). Such circumstances include but are not limited to:
The following definitions apply unless the context requires otherwise.
- acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires and any natural disaster;
- acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, and revolution;
- disease and a pandemic; and
- failure of internet and telecommunication services.
Goods means the goods set out in Item 1 of the Order Form which are as per the Description of the Goods.
Intellectual Property Rights means all intellectual property rights and proprietary rights (whether registered or unregistered) including but not limited to any processes, formulae, technology, systems, reports, drawings, specifications, computer software (including source codes and object codes), blue-prints, patents, patent applications, discoveries, inventions, improvements, trade secrets, technical data, research data, know-how, logos, registered and unregistered trademarks and service marks (including the Trade Marks), registered and unregistered designs, design rights, rights in circuit layouts, copyright and the right to keep confidential information confidential and any other rights in the nature of intellectual property rights.
Lead Time means the estimated lead time for the delivery of goods as per Item 10 of the Order Form.
Minimum Quantity means the minimum quantity to be ordered by the Buyer in accordance with Item 8 of the Order Form.
Order Form means an order form in a form substantially similar to the order form attached to this Agreement.
Order means the order placed by the Buyer to the Seller confirming the type of Good and the quantity of Goods the Buyer wishes to purchase pursuant to the Order Form.
Payment Terms means any Item 5 of the Order Form.
Point of Delivery means the point of delivery of the Goods by the Seller to the Third-Party Delivery Provider.
Purchase Order means the document issued with the Goods confirming the Buyer’s Order and Purchase Price.
Purchase Price means the price for the Goods set out in Item 4 of the Order Form.
Quantity means the quantity of Goods to purchased in accordance with Item 6 of the Order Form.
Territory means the territory set out in Item 9 of the Schedule.
Third Party Delivery Provider means the third party delivery service provider which is elected by the Seller and the cost of which is borne by the Buyer.
Trade Marks mean the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party.
2 INTERPRETATION
In this Agreement:
(a) references to a person include an individual, firm or a body, whether incorporated or unincorporated;
(b) clause headings are for references only and shall not form part of this Agreement nor used in this interpretation of this Agreement;
(c) if the time of doing an act or thing under this Agreement falls on a day which is not a Business Day, then the time of doing that act or thing shall be deemed to be the next Business Day;
(d) words in the singular include the plural and vice versa in accordance with the context of which that word used;
(e) words importing a gender include other genders;
(f) a reference to a clause is a reference to a clause in this Agreement;
(g) a reference to any of the words ‘include’, ‘includes’ and ‘including’ is to be read as if followed by the words “without limitation”;
(h) a reference to a statute, ordinance, code or law includes regulations and other instruments under it and any consolidations, amendments, re-enactments or replacements of any of them;
(i) a reference to any party includes that party’s executors, administrators, substitutes, successors and permitted assigns;
(j) each party has participated in the negotiating and drafting of this document and in the event of ambiguity or a question of interpretation arising, this Agreement is to be construed as if the Agreement was drafted jointly; and
(k) any term in this Agreement which is defined in the Order Form has the meaning ascribed to it in the Order Form.
3 ARRANGEMENT
3.1 It is agreed by and between the Parties that the Seller shall supply the Goods to the Buyer and the Buyer shall purchase the Goods in accordance with the Description of Goods and the terms contained in this Agreement, which for the avoidance of doubt includes the Order Form.
3.2 The Parties agree that the Order submitted by the Buyer to the Seller will only be binding upon written confirmation as such by the Seller to the Buyer (such written confirmation may be given by email).
3.3 Subject to clause 3.2, the Buyer agrees to purchase the Quantity of Goods in accordance with this Agreement.
4 MINIMUM ORDER
4.1 If stipulated in the Order Form, Orders placed with the Seller will be subject to a Minimum Quantity pursuant to Item 8 of the Order Form.
4.2 The Buyer acknowledges that the packaging of the Minimum Quantity may vary in sizes and dimensions.
5 PAYMENT TERMS
5.1 The Buyer shall make payment for the Goods pursuant to Item 5 in the Order Form.
5.2 The Buyer shall make payment towards the invoice issued by the Seller within fourteen (14) days of the invoice date or on the due date contained on the issued invoice.
5.3 Payment for the Goods are made by bank transfer or credit card payment or any other manner as directed by the Seller in its sole and absolute discretion including the use any third-party payment gateway provider.
5.4 All charges and fees charged by any third-party payment provider will be the sole responsibility of the Buyer.
5.5 The Buyer agrees that all payments are made by the Buyer at the Buyer’s sole and absolute risk and the Seller will not be responsible or liable for any loss of funds in relation to payment or attempted payment of the Purchase Price (or part thereof) using a third-party payment gateway provider and prior to making any such payments using any third-party payment gateway, the Buyer agrees to the terms and conditions of the third party payment gateway provider.
6 PRICES
6.1 The Purchase Price is exclusive of Goods and Services Tax (as that term is defined under the Goods and Services Tax Act 1985), where the end destination of the Goods is within New Zealand (GST), or any other value added tax which may be levied by the appropriate authority in any given jurisdiction outside of New Zealand.
6.2 The Buyer is solely responsible for GST or any value added taxes that may be levied on the Goods by the appropriate authorities in that jurisdiction, being the Buyers chosen delivery destination for the Goods.
7 INVOICES
(a) The Seller shall issue an invoice to the Buyer, pursuant to the Payment Terms in the Order Form, to the Buyer for the Goods before dispatch of any Goods.
(b) The invoice must contain all necessary information required for it to constitute a valid invoice under the applicable taxation and other regulations, laws and legislation of the state of New Zealand.
(c) The invoice shall contain sufficient detail and description of the amounts claimed and the details of the Goods sold to the Buyer.
7.1 Overdue Amounts
(a) If the Buyer fails to pay the Seller the amount in accordance with clause 5.2, then an interest rate of 12% per annum accruing daily on the outstanding amount will apply.
(b) Any accounts that are outstanding for forty-five (45) days or more may be passed on to a debt collection agency and the Buyer agrees that it will be responsible for the payment of any debt collector fees incurred in recovering the debt.
(c) The Seller reserves the right to, at their sole discretion and without notice, to withdraw the offer to the Buyer the Goods for sale if the Buyer fails to make payments on time for any issued invoice or fails to rectify any outstanding invoices or does not make the required payments in accordance with this agreement, reserving all rights and remedies at law the Seller has in relation to breach of the agreement.
8 ORDER DISPATCH
8.1 The Buyer acknowledges and agrees that the Order will only be dispatched once payment of the Purchase Price is made in full and the Delivery details in the Order Form have been approved and accepted by the Seller.
8.2 The Seller may at its sole and absolute discretion cancel any Order until such time as payment for the Goods is made in full.
8.3 Subject to clauses 8.1 and 9.1, the Seller agrees to use reasonable endeavours to dispatch the Order to the Buyer as soon as reasonably possible, in conformance with the Lead Time and the Delivery Date.
9 DELIVERY OF ORDERS
9.1 The Buyer acknowledges and agrees that the estimated Delivery Date and Lead Time in accordance with the Order Form are estimates only, to be used for guidance purposes only and under no circumstances will the Seller be responsible or held liable for non-conformance to the Delivery Times or Lead Times.
9.2 Subject to this clause 9, the Seller will use reasonable endeavours to deliver each Order to the Delivery Location on the Delivery Date, pursuant to the Shipping Terms specified in Item 13 of the Order Form.
9.3 The Buyer will ensure that they or their appointed agent will receive the Goods at the Delivery Location. Any cost to store or re-dispatch the Goods due to the act or omission of the Buyer will be paid by the Buyer.
9.4 The Parties agree that risk for the Goods will the Buyer’s sole responsibility from the Point of Delivery.
9.5 The Buyer acknowledges and agrees that the delivery of the Order may be delayed due to circumstances outside of the Sellers control, including any delay by a Third Party Delivery Provider. The Buyer agrees that the Seller is not liable for non-delivery due to circumstances outside of the Sellers control including delays by any Third Party Delivery Provider.
10 DELIVERY COST
10.1 The cost of delivery is exclusive of the Purchase Price and will be in accordance with the invoice issued to the Buyer.
11 PRE-ORDERS
11.1 Pre-orders are considered final Orders and cannot be cancelled once paid.
11.2 The Seller reserves the right to cancel the production of any of the Goods in the Seller’s range. If this occurs, the payment received for the cancelled Goods will be refunded in full to the Buyer.
12 QUOTATIONS
12.1 The Seller may provide to the Buyer a quotation for the purchase of the Goods before the Buyer places an Order, if requested by the Buyer.
12.2 All prices and other details in any quotation issued by the Seller are valid for thirty (30) days, or as such other time limit as stated in the quotation or until withdrawn by the Seller in writing. Unless otherwise stated, the prices for the Goods are exclusive of GST or any other value added tax.
12.3 The Buyer must pay GST at the same time and in the same manner as the consideration for the Goods. The applicable GST amount will be displayed on the invoice.
12.4 Any quote issued under clause 12 by the Seller will only be binding upon the Parties in accordance with the terms of this Agreement upon the written confirmation (including by email) and acceptance as such by the Buyer of the terms of the quote.
13 NON-EXCLUSIVITY
13.1 The Buyer agrees that the sale of Goods to Buyer is on a non-excusive basis and the Seller may sell product or the goods matching the exact Description of Goods to any person or entity within the Territory at its sole and absolute discretion.
14 TITLE TO GOODS
14.1 Ownership of and title to the Goods shall not pass to the Buyer until the Buyer pays the Purchase Price in full and any outstanding monies (if any) in respect of such Goods or any prior transactions.
14.2 Until property in the Goods passes from the Seller to the Buyer, it is agreed that:
(a) the Buyer shall retain the Goods in such manner that they are readily identifiable as the Seller’s property;
(b) the Goods supplied shall nevertheless be at the Buyer’s risk from the Point of Delivery;
(c) the Buyer shall not in any way deal with, or part with possession of, the Goods, or any part thereof, or attempt to do so; and
(d) the Buyer must return the Goods to the Seller if the Seller requests the Buyer to do so, and pay for any costs associated with the return and any damage to the Goods.
15 RETURNS AND CANCELLATIONS
15.1 The Buyer is responsible for inspecting the Goods on Delivery.
15.2 If the Buyer seeks a refund in the event of defect, damage or failure, the Buyer is to provide written notice to the Seller within fourteen (14) days of receiving the Goods stating the reasons the Buyer seeks a refund and provide details of any alleged defect, shortage in quantity, damage or failure to comply with the description of Goods.
15.3 Subject to clause 15.2, if the Buyer seeks a refund based on a defect, the Buyer must provide to the Seller any photos, videos or other documentation that shows the defect within fourteen (14) days of receiving the Goods.
15.4 The Seller will inspect the photos, videos or documentation to establish whether the Buyer is entitled to further investigation of the Goods. The Seller may ask for the Goods to be returned to the Seller in order to inspect the Goods physically.
15.5 The Buyer agrees that it is responsible for any shipping or delivery fees associated with returning the Goods to the Seller.
15.6 All orders are final and cannot be cancelled once payment has been made for the order as per the issued invoice in relation thereto. The Seller does not accept returns for unsold or unused Goods and change of mind.
15.7 For the avoidance of doubt, clauses 15.2 to 15.5 may only be enforced where the Goods delivered to the Buyer are defective or damaged and such damage is not the result of shipping by the Third Party Delivery Provider.
16 WARRANTY
16.1 To the full extent permitted by law, and except as set out in the Seller’s warranty terms for each good, the Seller makes no representations or warranties, express or implied, regarding any matter including merchantability, fitness for a particular purpose or use or suitability for resale in relation to any Goods supplied to the Buyer.
16.2 Where the final destination of the Goods is New Zealand, the Goods come with guarantees that cannot be excluded under the Consumer Guarantees Act 1993, Fair Trading Act 1986 and all any other New Zealand laws which cannot be excluded (New Zealand Consumer Laws). Where New Zealand Consumer Laws implies into this Agreement any condition or warranty that cannot be restricted or modified, the Seller’s liability for any breach of such conditions or warranties will (to the full extent permitted by law) be limited to, at the Seller’s option, one or more of the following:
(a) replacement of the Goods, the repair of the Goods, or the supply of equivalent Goods;
(b) repayment of any part of the price of the Goods supplied; or
(c) payment of the costs of replacing or repairing the Goods, or acquiring equivalent Goods.
17 RESALE
17.1 On resale or distribution of the Goods, the Buyer must include information regarding use, storage, and qualities provided by the Seller with the Goods.
17.2 The Buyer may only resell the Goods in accordance with the following:
(a) Goods must only be sold within the Territory;
(b) Goods cannot be sold online whatsoever;
(c) Goods can only be sold from physical retail locations owned or controlled by the Buyer within the Territory;
(d) Goods must not be sold for more than the Maximum Resale Price in accordance with Item 12 of the Schedule; and
(e) Goods must only be sold by the Buyer or Related Company (as that term is defined in the Companies Act 1993 of the Buyer to its retail customers.
for the avoidance of doubt the obligations under clause 17.2 of this Agreement are material obligations.
18 TRADE MARKS, INTELLECTUAL PROPERTY AND ADVERTISING MATERIAL
18.1 The Buyer may, subject to the written consent of the Seller, use the Seller’s Trade Mark(s) in its marketing of the Goods or otherwise in the manner and as directed in the written consent issued by the Seller.
18.2 The Seller may permit the Buyer to use the Goods and the Trade Marks(s) in marketing the Goods on social media platforms approved by the Seller at the sole discretion of the Seller, however any posts must be approved by the Seller prior to submission onto the social media platform and on posting to any social media platform the Buyer must notify the Seller (whether by using the Seller’s social media “tag” or otherwise).
18.3 The Buyer acknowledges that it has no rights, and will obtain no rights, in the Seller’s Trade Mark(s) or other intellectual property owned or controlled by the Seller or any of its agents, employees, directors, officers, contractors or related entities (the Affiliates) (or any goodwill associated with such rights) other than those granted in clause 18.1. At the request of the Seller and at the expense of the Buyer, the Buyer will do all things and sign all things as may be required to transfer any intellectual property and/or domains that includes the Trade Mark(s) and/or Intellectual Property Rights that have been created or is created by the Buyer. All goodwill resulting from the Buyer’s use of the Trade Mark(s) and trade names shall belong to and ensure for the sole benefit of the Seller.
18.4 The Buyer, and its Affiliates shall:
(a) not infringe any Intellectual Property Rights of the Seller or any of its Affiliates;
(b) promptly notify the Seller of any actual, threatened or suspected infringement of any Intellectual Property as soon as the Buyer becomes aware of such infringement or suspected infringement;
(c) promptly notify the Seller of any claim by a third party that the importation and/or sale of the Goods infringes upon any rights of any other person, as soon as the Buyer becomes aware of such allegation of infringement or suspected infringement; and
(d) at the request and expense of the Seller do all such things as may be reasonably required to assist the Seller in taking or resisting any proceedings in relation to any such infringement or claim.
18.5 Unless otherwise agreed in writing by the parties, any new Intellectual Property Rights created by, or on behalf of, the Buyer in connection with the Goods or improvements, developments or modifications to the Seller’s existing Intellectual Property Rights, including new uses or registrations in any jurisdiction, will vest absolutely and automatically on creation in the Seller and the Buyer agrees to do all such things as are necessary, including the execution of documents, to give effect to this clause 18.5. If, for any reason, any such new Intellectual Property Rights created by, or on behalf of the Buyer do not vest in the Seller from point of creation or development or modification, then the Buyer shall, at the Seller’s direction and cost:
(a) assign, transfer or exclusively licence the relevant Intellectual Property Rights to the Seller in such a way that the Seller is entitled to the intellectual property as (or, in the case of a licence, as if it were) the sole and exclusive owner;
or
(b) if there is any impediment to the arrangements contemplated in paragraph (a), hold the relevant Intellectual Property Rights on trust for the Seller (as a bare trustee obliged to act on all directions of the Seller in relation to the relevant intellectual property).
18.6 The Seller shall not have any liability under paragraphs if an alleged infringement claim by a claimant results from a breach by the Buyer of its obligations under this Agreement.
18.7 All Trade Mark(s) and trade names used by the Seller in relation to the Goods are hereby licenced to the Buyer for use in respect of the marketing, distribution and sale of the Goods. The Seller will use its best efforts to ensure that its Trade Mark(s) are registered or in the process of registration in Australia and the Seller is not aware of any rights of any third party which would or might render the distribution and sale of the Goods or any use of any Trade Mark on or in relation to the Goods, unlawful. The Buyer agrees to assist, do all things, and sign all documents necessary to register the Seller’s Trade Marks in any jurisdiction that you operate, at the cost and request of the Seller.
18.8 Subject to the terms and conditions of this Agreement, the Buyer hereby grants to the Seller for no consideration, a non-exclusive, non-transferable licence, on a royalty-free basis, to use the Buyer’s Trade Mark(s) or intellectual property marks, solely in connection with the Seller’s promotional activities and social media posts and the Buyer’s Trade Mark(s) or intellectual Property marks may be stated on the Seller’s website.
19 CONFIDENTIALITY
19.1 Receiving Party not to Disclose Confidential Information
The Receiving Party will not, during or after this Agreement, disclose Confidential Information directly or indirectly to any third party except:
(a) with the Discloser’s prior written consent;
(b) as required by law; or
(c) in the case of the Buyer, to its officers, agents, professional advisers and contractors on a need to know basis for the purposes of this Agreement, or in the case of Seller, to any person for the purposes of the Seller’s business or operations (Additional Disclosees).
In this clause:
19.2 Additional Disclosees
The Receiving Party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 19.
19.3 Breach of Confidentiality
If the Receiving Party becomes aware of a suspected or actual breach of this clause by the Receiving Party or an Additional Disclosee, the Receiving Party will immediately notify the Discloser and take reasonable steps required to prevent or stop the suspected or actual breach.
19.4 Use of Confidential Information
The Buyer will only use the Seller’s Confidential Information for the purposes of this Agreement.
19.5 Return of Confidential Information
The Buyer will return or destroy (at the Seller’s direction), Materials containing Confidential Information when they are no longer required by the Buyer, or otherwise when directed by the Seller.
19.6 Definitions
In this clause:
(a) Discloser means the party providing or disclosing Confidential Information.
(b) Confidential Information means information of or provided by the Discloser to the Receiving Party that is by its nature confidential information, is designated by the Discloser as confidential, or the Receiving Party knows or ought to know is confidential but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
(c) Materials means any documentation, notices, or information provided by the Seller that contains Confidential Information.
(d) Receiving Party means the party who receives Confidential Information from the Discloser.
20 LIABILITY
20.1 The Buyer acknowledges and agrees that the Seller, its affiliates, employees, agents, contributors and licensors shall not be liable to the Buyer for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by the Buyer, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
20.2 The Buyer acknowledges and agrees that the Seller holds no liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you as a result of the Goods provided pursuant to this Agreement, and that the Buyer will be solely responsible.
20.3 To the extent the foregoing limitation of liability is prohibited or despite the limitation above, in the event that the Seller is found to be liable to the Buyer, the Seller’s total aggregate liability is limited to the Purchase Price of the Good(s).
21 INDEMNITY
20.1 The Buyer shall indemnify and defend the Seller and its employees, agents and contractors (Those Indemnified) against claims, liabilities, losses, damages, costs and expenses made against, or suffered or incurred by, those Indemnified as a result of:
(a) a breach of this Agreement, or negligence relevant to this Agreement, by the Buyer; or
(b) an infringement or alleged infringement of a Parties’ or a third party’s Intellectual Property Rights or Moral Rights or arising from an act of the Buyer, or a person authorised by the Buyer in relation to the Agreement.
20.2 In conducting a claim, suit or action in respect of which the Buyer indemnifies Those Indemnified, the Buyer will, at the Buyer’s expense, comply with the Seller’s reasonable directions.
21 GENERAL
21.1 Assignment
The Buyer will not transfer or assign its rights under this Agreement without the prior written consent of the Seller (which will not be unreasonably withheld).
21.2 Conflicts of Interest
21.3 The Buyer warrants that to the best of its knowledge, information and belief, no conflict of interest exists or is likely to arise in the performance of this Agreement and will notify the Seller if any conflict of interest arises.
21.4 Compliance with the New Zealand Consumer Laws
21.5 To the extent any of the Seller’s obligations under New Zealand Consumer Laws cannot be excluded and are applicable in relation to the supply of the Goods under this Agreement, nothing in this Agreement excludes, restricts or modifies a guarantee, right, liability or remedy to the extent that to do so would render a term void or be a breach of the New Zealand Consumer Laws.
21.6 Disclosure
If the Buyer becomes aware of a matter which is likely to affect materially the ability of the Buyer to perform this Agreement, it will immediately notify the Seller of it.
21.7 Entire Agreement
The Agreement constitutes the entire agreement between the Seller and the Buyer in relation to its subject matter.
21.8 Force Majeure
If a party is prevented from or delayed in performing an obligation by Force Majeure, and promptly acts to mitigate or remove the Force Majeure and its effect, then the obligation is suspended during, but for no longer than, the period the Force Majeure continues and any further period that is reasonable in the circumstances, excluding any requirement regarding payment.
21.9 Further Assurance
Each party will promptly do further acts and execute and deliver further documents (in the form and content reasonably satisfactory to that party) required by law or reasonably requested by the other party to give effect to this Agreement.
22 SEVERANCE
22.1 If any of the terms or conditions in this Agreement are or become for any reason wholly or partly invalid, that term or condition shall to the extent of the invalidity be severed without prejudice to the continuing force and validity of the remaining terms or conditions.
23 WAIVER
23.1 Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by law or under this Agreement or any other contract to which this Agreement applies, does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under this Agreement.
23.2 A waiver or consent given by the Seller under this Agreement is only effective and binding on the Seller if it is given or confirmed by the Seller in writing.
23.3 No waiver of a breach of this Agreement operates as a waiver of another breach of that term or condition or of a breach of any other term or condition in this document.
24 TERMINATION
24.1 In the absence of any material breach of this Agreement and upon the completion of any outstanding Order, either party may terminate this Agreement by providing at least 30 days’ written notice to the other party.
24.2 This Agreement will automatically terminate if a party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).
24.3 Either party may immediately terminate this Agreement if:
(a) the other party is in material breach of any of its obligations under this Agreement; and
(b) the breach is capable of remedy fails to remedy the breach for a period of 30 days after receipt of a written notice by the other party requiring rectification of the breach.
24.4 Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.
24.5 The obligations of the Parties that by their nature could reasonably be construed as being intended to continue to apply beyond the termination of this Agreement will continue to apply and remain in full force.
25 DISPUTE RESOLUTION
25.1 Mediation
(a) If a dispute arises out of or relates to the terms of this Agreement, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
(b) A party to this Agreement claiming a dispute (the Dispute) has arisen under the terms of this Agreement, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the Notice).
(c) On receipt of the Notice by the other party, the parties to the Dispute (the Dispute Parties) must within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
(d) If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved the Dispute Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of New South Wales or his or her nominee and attend a mediation.
(e) It is agreed that mediation will be held in Sydney in the State of New South Wales, Australia, and may be held by video.
(f) The Dispute Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Dispute Parties must each pay their own costs associated with the mediation.
(g) If 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
25.2 Arbitration
(a) In the event that the Dispute is not resolved at the conclusion of the mediation, the Dispute Parties are prohibited from instituting legal proceedings concerning the subject matter of the Dispute and the Dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination, will be resolved by arbitration in accordance with the ICC Rules of Arbitration (or any rules which supersede these rules). The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one. This clause may be used as a bar to legal proceedings issued in any Court in any country which has ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
(b) However, Dispute Parties may apply for immediate injunctive relief in any court of competent jurisdiction.
25.3 Confidential
(a) All communications concerning negotiations made by the Dispute Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
26 NOTICE
26.1 Notice shall be given in writing by either party in relation to any dispute and sent to the other party’s email address set out in Item 9 of the Order Form.
26.2 Notice shall be taken to be received by the addressee on the same day that the email is sent.
27 GOVERNING LAW AND JURISDICTION
27.1 This Agreement is subject to the law of New Zealand.