• 1.1 “Agent” means MGE Engineering Limited trading as Firestar, its successors and assigns or any person acting on behalf of and with the authority of MGE Engineering Limited trading as Firestar.
• 1.2 “Client” means the person/s buying the Goods and/or hiring/leasing Equipment as specified in any invoice, document, contract to which these terms and conditions apply and/or order, and if there is more than one Client is a reference to each Client jointly and severally.
• 1.3 “Constellation (Plan/Agreement)” means the agreement (if any) between the Agent and the Client relating to the supply of additional products including but not limited to PIN Codes (allowing internet access) for the resale to End Users.
• 1.4 “Database” means any database provided by the Agent to the Client, whether under a Licence Agreement or otherwise.
• 1.5 “Equipment” means all equipment including any accessories supplied on lease by the Agent to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to lease, Lease Agreement or any other work authorisation form provided by the Agent to the Client.
• 1.6 “Goods” means all Goods or Services supplied by the Agent to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
• 1.7 “HALO (Plan/Agreement)” means Lease Agreement.
• 1.8 “Intellectual Property” means all intellectual property whatsoever including (without limitation) trade and service names and marks, (whether registered or unregistered), brands, branding materials, logos, insignia, writings, drawings, diagrams, designs, copyright material, patents, domain names, websites, all concepts, ideas, discoveries, inventions, improvements, specifications, technical information and data, manuals, research results, trade secrets, know-how, techniques, systems, procedures, processes, protocols, custom configurations, software and programs (whether denominated software, firmware, operating system or otherwise), recipes, formulae, contracts, customer lists, customer requirements, business data, business plans, financial information, accounts, reports, and the benefit of any applications or registrations in respect of any of the above, and any other intellectual and industrial property whatsoever, whether or not patented or registered and in any form, regardless of whether the information has been recorded in writing or is printed or electronically stored or otherwise.
• 1.9 “Lease (Plan/Agreement)” means an agreement (if any) between the Agent and the Client relating to the lease of Equipment and/or the Licence of Software from the Agent to the Client, whether under a Lease Agreement, Licence Agreement or otherwise.
• 1.10 “Licence Agreement” means an agreement (if any) between the Agent and the Client relating to the licence of the Agent’s Software to the Client.
• 1.11 “Price” means the Price payable for the Goods, Services, Equipment and/or Software as agreed between the Agent and the Client in accordance with clause 4 below.
• 1.12 “Software” means any software provided by the Agent to the Client, whether under a Licence Agreement or otherwise.
• 1.13 “Stellar (Plan/Agreement)” means the agreement (if any) between the Agent and the Client relating to the sale of Goods from the Agent to the Client.
• 1.14 “Website” means the Agent’s website available at www.firestar.co.nz.

• 2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client:
• (a) places an order for or accepts delivery of the Goods/Equipment; or
• (b) enters into a contract to which these terms and conditions apply.
• 2.2 The Client accepts and acknowledges that there are inherent hazards in electronic distribution and as such the Agent cannot warrant against delays or errors in transmitting data, and you agree that to the maximum extent permitted by law, the Agent will not be liable for any losses which the Client suffers as a result of online access not being available or for delays or errors in transmitting information.
• 2.3 The Client accepts and agrees to purchase all products (including, but not limited to, Broadband usage) deemed necessary that form part of the Services from the Agent and any revenue derived from the supply of said Services will be disbursed as agreed in accordance with the separate Constellation Agreement between the Agent and the Client.
• 2.4 These terms and conditions are to be read in conjunction with any further terms and conditions posted on the Website, Constellation Plan, Licence Agreement, Lease Agreement, HALO Plan, Stellar Plan and/or any other contract between the parties. Unless specified otherwise, if there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.

• 3.1 The Client shall give the Agent not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Agent as a result of the Client’s failure to comply with this clause.

• 4.1 At the Agent’s sole discretion the Price shall be:
• (a) as indicated on any invoice provided by the Agent to the Client;
• (b) as agreed in any contract to which these terms and conditions apply;
• (c) the Agent’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
• 4.2 The Agent reserves the right to change the Price:
• (a) in respect of any lease of Equipment, at its sole discretion, by giving 1 month’s written notice to the Client; or
• (b) in respect of any licence of Software, at its sole discretion, by giving 1 month’s written notice to the Client;
• (c) if a variation to the Goods which are to be supplied is requested; or
• (d) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
• (e) where additional Works are required due to latent conditions with the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, change of design, discovery of asbestos, hidden pipes and wiring in walls etc.) which are only discovered on commencement of the Works.
• 4.3 At the Agent’s sole discretion a non-refundable deposit may be required.
• 4.4 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by the Agent, which may be:
• (a) on delivery of the Goods/Equipment;
• (b) before delivery of the Goods/Equipment;
• (c) for certain approved Clients, twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
• (d) the date specified on any invoice, in any contract to which these terms and conditions apply or on any other form as being the date for payment; or
• (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Agent.
• 4.5 Payment may be made by direct debit or by any other method as specified in writing by the Agent from time to time.
• 4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Agent an amount equal to any GST the Agent must pay for any supply by the Agent under this or any other agreement for the sale of the Goods/lease of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

• 5.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that the Agent (or the Agent’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
• 5.2 At the Agent’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
• 5.3 The Client must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the event that the Client is unable to take delivery of the Goods/Equipment as arranged then the Agent shall be entitled to charge a reasonable fee for redelivery of the Goods/Equipment and/or the storage of the Goods.
• 5.4 Subject to clause 5.5 it is the Agent’s responsibility to ensure that the Services start as soon as it is reasonably possible.
• 5.5 The Services commencement date will be put back and/or the completion date extended by whatsoever time is reasonable in the event that the Agent claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Agent’s control, including but not limited to any failure by the Client to:
• (a) make a selection; or
• (b) have the site ready for the Services; or
• (c) notify the Agent that the site is ready.
• (d) perform basic tasks including but not limited to connecting Equipment to a power source and internet connection.
• 5.6 Any time or date given by the Agent to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and the Agent will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.

• 6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
• 6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Agent is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Agent is sufficient evidence of the Agent’s rights to receive the insurance proceeds without the need for any person dealing with the Agent to make further enquiries.
• 6.3 If the Client requests the Agent to leave Goods outside the Agent’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

• 7.1 The Client is responsible for connecting the Goods/Equipment to an existing power source and internet connection.
• 7.2 In cases where large network infrastructure is to be provided by the Agent including multiple devices and extensive cabling the Agent is responsible for full installation including connecting the Goods/Equipment each other and to existing power sources.
• 7.3 The Client warrants that any structures to which the Goods/Equipment are to be affixed are able to withstand the installation/connection of the Goods/Equipment and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods/Equipment once installed/connected. 5.4

• 8.1 The Agent and the Client agree that ownership of the Goods shall not pass until:
• (a) the Client has paid the Agent all amounts owing to the Agent; and
• (b) the Client has met all of its other obligations to the Agent.
• 8.2 Receipt by the Agent of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
• 8.3 It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 8.1:
• (a) the Client is only a bailee of the Goods and must return the Goods to the Agent on request.
• (b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Agent and must pay to the Agent the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
• (c) the Client must not sell, dispose, or otherwise part with possession of the Goods.
• (d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Agent and must sell, dispose of or return the resulting product to the Agent as it so directs.
• (e) the Client irrevocably authorises the Agent to enter any premises where the Agent believes the Goods are kept and recover possession of the Goods.
• 8.4 the Agent may recover possession of any Goods in transit whether or not delivery has occurred.
• 8.5 The Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods/Equipment while they remain the property of the Agent.
• 8.6 the Agent may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

• 9.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
• (a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
• (b) a security interest is taken in all Goods/Equipment previously supplied by the Agent to the Client (if any) and all Goods/Equipment that will be supplied in the future by the Agent to the Client.
• 9.2 The Client undertakes to:
• (a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Agent may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
• (b) indemnify, and upon demand reimburse, the Agent for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods/Equipment charged thereby;
• (c) not register a financing change statement or a change demand without the prior written consent of the Agent; and
• (d) immediately advise the Agent of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
• 9.3 The Agent and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
• 9.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
• 9.5 Unless otherwise agreed to in writing by the Agent, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
• 9.6 The Client shall unconditionally ratify any actions taken by the Agent under clauses 9.1 to 9.5.

• 10.1 The Client hereby disclaims any right to rescind, or cancel any contract with the Agent or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by the Agent and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.

• 11.1 The Client shall inspect the Goods/Equipment on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Agent of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Agent an opportunity to inspect the Goods/Equipment within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods/Equipment shall be presumed to be free from any defect or damage. For defective Goods/Equipment, which the Agent has agreed in writing that the Client is entitled to reject, the Agent’s liability is limited to either (at the Agent’s discretion) replacing the Goods/Equipment or repairing the Goods/Equipment.

• 12.1 Returns of Goods will only be accepted provided that:
• (a) the Client has complied with the provisions of clause 11.1; and
• (b) the Agent has agreed in writing to accept the return of the Goods; and
• (c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
• (d) the Agent will not be liable for Goods which have not been stored or used in a proper manner; and
• (e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
• 12.2 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.

• 13.1 For Goods not manufactured by the Agent, the warranty shall be the current warranty provided by manufacturer.

• 14.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Agent to the Client.

• 15.1 Where the Agent has provided Software, access to a Database and/or documentation under any contract to which these terms and conditions apply, the Agent retains all rights and ownership of the Software, Database and documentation (including Intellectual Property rights), but grants the Client a non-exclusive and non-transferable licence for its use (solely in relation to the operation of the Client’s own business).
• 15.2 The Client will use any third-party software supplied by the Agent, and identified as such, strictly in terms of the licence under which it is supplied, provided that:
• (a) any consumables and sundry items which are to be utilised in conjunction with the Equipment are purchased exclusively from the Agent.
• 15.3 The Client must not, nor may it permit any other person to:
• (a) copy, alter, modify, reproduce, reverse assemble, reverse compile or enhance the Software;
• (b) alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality, proprietary or trade secret, legend or notice, or any numbers, or other means of identification used on or in relation to the Software;
• (c) make any of the Software or the Database available to any person other than its employees without the prior written consent of the Agent; or
• (d) do any act that would or might invalidate or be inconsistent with the Agent’s Intellectual Property rights.
• 15.4 The Client acknowledges that any Intellectual Property arising directly or indirectly out of the performance of the Licence Agreement and/or any other contract to which these terms and conditions apply is, or shall on creation be, the exclusive property of the Agent.
• 15.5 The Client must notify the Agent of any actual, threatened, or suspected infringement of any Intellectual Property right and of any claim by any third party that any use of the Software infringes any rights of any other person, as soon as that infringement or claim comes to the Client’s notice. The Client shall (at the Agent’s expense) do all such things as may reasonably be required by the Agent to assist the Agent in pursuing or defending any proceedings in relation to any such infringement or claim.
• 15.6 The Client indemnifies the Agent against any loss, costs, expenses, demands or liability, whether direct, indirect or consequential or otherwise, and whether arising in contract, tort (including in each case negligence), or equity or otherwise, arising out of a claim by a third party alleging infringement of that third party’s Intellectual Property rights if such claim arises from infringement, suspected infringement or alleged infringement due to:
• (a) use of any of the Software in combination by any means and in any form with software or equipment not specifically approved by the Agent or in a manner or for a purpose not reasonably contemplated or authorised by the Agent; and/or
• (b) a breach by the Client of clause 15.3.
• 15.7 The Client warrants that all designs, specifications or instructions given to the Agent will not cause the Agent to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Agent against any action taken by a third party against the Agent in respect of any such infringement.
• 15.8 The Client agrees that the Agent may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Agent has created for the Client.

• 16.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party (other than to its employees to the extent necessary or to its professional advisers), without the other party's written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
• 16.2 The Client shall indemnify the Agent against any losses, costs (including solicitor and client costs), expenses, demands or liability, whether direct, indirect, consequential, or otherwise, and whether arising in contract, tort (including in each case negligence), or equity or otherwise, incurred as a result of any unauthorised disclosure or use of the confidential information by the Client or any of its employees.

• 17.1 If the Client fails to pay any amount due to the Agent, the Agent may without prejudice to its other rights require the Client to pay interest on the amount due from the due date until the date of payment, at a rate equal to 2.5% per calendar month (in addition to the Client remaining liable for the full amount outstanding). Interest shall accrue daily from the date when payment becomes due, until the date of payment, and at the Agent’s sole discretion such interest shall compound monthly at such a rate, after as well as before any judgment.
• 17.2 If the Client owes the Agent any money the Client shall indemnify the Agent from and against all costs and disbursements incurred by the Agent in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Agent’s collection agency costs, and bank dishonour fees).
• 17.3 Without prejudice to any other remedies the Agent may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions, or under any contract to which these terms and conditions apply, the Agent may suspend or terminate the supply of Goods, Services and/or Equipment to the Client. The Agent will not be liable to the Client for any loss or damage the Client suffers because the Agent has exercised its rights under this clause.
• 17.4 Without prejudice to the Agent’s other remedies at law the Agent shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Agent shall, whether or not due for payment, become immediately payable if:
• (a) any money payable to the Agent becomes overdue, or in the Agent’s opinion the Client will be unable to make a payment when it falls due;
• (b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
• (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

• 18.1 Both the Client and the Agent agree that they will at all times ensure that they comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including occupational health and safety laws relating to building/construction sites, and any other relevant safety standards or legislation, particularly those in relation to Asbestos/Hazardous Goods and the safe removal and disposal of the same.
• 18.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
• 18.3 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electricity (Safety) Regulations 2010 and all subsequent amendments. All of the cabling work will comply with the Australian and New Zealand Wiring standards.

• 19.1 The Agent may, at any time before the Goods/Equipment are due to be delivered, by giving written notice to the Client:
• (a) cancel any contract to which these terms and conditions apply; or
• (b) cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered.
• 19.2 On giving such notice under clause 20.1(b), the Agent shall repay to the Client any money paid by the Client for the Goods/Equipment.
• 19.3 The Agent shall not be liable for any loss or damage whatsoever arising from cancellation under clause 19.1.
• 19.4 In the event that the Client cancels delivery of the Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Agent as a direct result of the cancellation (including, but not limited to, any loss of profits).

• 20.1 The Client authorises the Agent or the Agent’s agent to:
• (a) access, collect, retain and use any information about the Client;
• (i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
• (ii) for the purpose of marketing products and services to the Client.
• (b) disclose information about the Client, whether collected by the Agent from the Client directly or obtained by the Agent from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
• 20.2 Where the Client is an individual the authorities under clause 20.1 are authorities or consents for the purposes of the Privacy Act 1993.
• 20.3 The Client shall have the right to request the Agent for a copy of the information about the Client retained by the Agent and the right to request the Agent to correct any incorrect information about the Client held by the Agent.

• 21.1 Equipment shall at all times remain the property of the Agent and is returnable on demand by the Agent. In the event that Equipment is not returned to the Agent in the condition in which it was delivered the Agent retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all the Agent shall have right to charge the Client the full cost of replacing the Equipment.

• 22.1 The Client shall pay lease charges for the on-going use of the Equipment (“Lease Charges”) for the duration of the lease (“Lease Period”) as per the Lease Agreement. The Agent may adjust the Lease Charges from time to time (as per clause 4.2) upon one (1) month’s written notice to the Client.
• 22.2 Lease Charges shall commence from the earlier of:
• (a) the time the Equipment is collected by the Client from the Agent’s premises; or
• (b) the time the Equipment is delivered by the Agent (or the Agent’s nominated carrier) to the Client’s nominated address; or
• (c) the time the Equipment is installed by the Agent (or the Agent’s nominated sub-contracted installer) at the Client’s business location; or
• (d) the date specified in the Lease Agreement.
• 22.3 Unless otherwise specified in the Lease Agreement, Lease Charges shall be paid monthly, in advance, with the first payment due on the date the Equipment is delivered/received with subsequent payments due on the same date in each month period.
• 22.4 No allowance whatever can be made for time during which the Equipment is not in use for any reason, unless the Agent confirms special prior arrangements in writing.
• 22.5 At the Agent’s sole discretion, Lease Charges on the Equipment may be waived for a stipulated period, depending on the amount of consumables the Client purchases from the Agent.

• 23.1 The Client shall lease the equipment from the Agent for (at least) the term specified in the Lease Agreement (“Minimum Lease Period”). To terminate the lease on, or after, the Minimum Lease Period, the Client must give the Agent not less than 1 months’ notice of termination. The lease will then terminate on the last day of the notice period. If the Client does not terminate the lease at the end of the Minimum Lease Period, the term of the lease will continue for a further period of twelve (12) months.
• 23.2 If the Client wishes to terminate the lease prior to the expiration of the Minimum Lease Period, the Client shall pay the Agent the termination fee specified in the Lease Agreement or if not specified the higher of $300 or 50% of the remaining Lease Charges.
• 23.3 In the event of a variation to the terms of the Equipment lease, the Agent shall give the Client a written document stating the reason for the variation, a full description of the variation, any effect the variation will have on the agreement, including but not limited to, the Price and any revised Minimum Lease Period date, and shall require written acceptance by the Client of the variation prior to execution of the variation.

• 24.1 Software shall at all times remain the Intellectual Property of the Agent and is returnable on demand by the Agent.

• 25.1 The Client shall pay licence charges for the on-going use of the Software (“Licence Charges”) for the duration of the licence (“Licence Period”) as per the Licence Agreement. The Agent may adjust the Licence Charges from time to time (as per clause 4.2) upon one (1) month’s written notice to the Client.
• 25.2 Licence Charges shall commence from the earlier of:
• (e) the time the Software is delivered by the Agent (or the Agent’s nominated carrier) to the Client’s nominated address; or
• (f) the time the Software is installed by the Agent (or the Agent’s nominated sub-contracted installer) at the Client’s business location; or
• (g) the date specified in the Licence Agreement.
• 25.3 Unless otherwise specified in the Licence Agreement, Licence Charges shall be paid monthly, in advance, with the first payment due on the date the Equipment is delivered/received with subsequent payments due on the same date in each month period.
• 25.4 No allowance whatever can be made for time during which the Equipment is not in use for any reason, unless the Agent confirms special prior arrangements in writing.
• 25.5 At the Agent’s sole discretion, Licence Charges on the Equipment may be waived for a stipulated period, depending on the amount of consumables the Client purchases from the Agent.

• 26.1 The Client shall licence the Software from the Agent for (at least) the term specified in the Licence Agreement (“Minimum Licence Period”). To terminate the licence on, or after, the Minimum Licence Period, the Client must give the Agent not less than 1 months’ notice of termination. The licence will then terminate on the last day of the notice period. If the Client does not terminate the licence at the end of the Minimum Licence Period, the term of the licence will continue for a further period of twelve (12) months.
• 26.2 If the Client wishes to terminate the licence prior to the expiration of the Minimum Licence Period, the Client shall pay the Agent the termination fee specified in the Licence Agreement or if not specified the higher of $300 or 50% of the remaining Licence Charges.
• 26.3 In the event of a variation to the terms of the Software licence, the Agent shall give the Client a written document stating the reason for the variation, a full description of the variation, any effect the variation will have on the agreement, including but not limited to, the Price and any revised Minimum Licence Period date, and shall require written acceptance by the Client of the variation prior to execution of the variation.

• 27.1 Subject to clause 27.2, the Client consents to receiving from time to time, electronic messages from the Agent which market or promote the Agent’s goods and services.
• 27.2 the Agent will cease to send electronic messages as described in clause 27.1 above to the Client if at any time the Client instructs the Agent in writing to cease sending such electronic messages to the Client at those electronic addresses.
• 27.3 the Agent will include a functional unsubscribe facility in any electronic messages sent to the Host which market or promote the Agent’s goods and services.

• 28.1 Where any dispute arises between the parties concerning these terms and conditions, or the circumstances, representations or conduct giving rise to these terms and conditions, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 28.
• 28.2 The party initiating the dispute (the first party) must provide written notice of the dispute to the other party (the other party) and nominate in that notice the first party’s representative for the negotiations. The other party must within five business days of receipt of the notice, give written notice to the first party naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute.
• 28.3 If the parties are unable to resolve the dispute by discussion and negotiation within 10 business days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.
• 28.4 The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.

• 29.1 Any notice, communication, document or demand requiring to be given, made or served pursuant to these terms and conditions shall be in writing signed by the party giving the notice or by any officer or solicitor of that party, and sent to such address in New Zealand as that party may advise to the other and any such notice or document shall be deemed to be duly given or made:
• (a) if delivered by hand, when so delivered;
• (b) if sent by email, when the sender has sent the same without receiving any error message in reply; or
• (c) if sent by post, on the second business day following posting.

• 30.1 The failure by the Agent to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Agent’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
• 30.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
• 30.3 The Agent shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Agent of these terms and conditions (alternatively the Agent’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment lease).
• 30.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Agent nor to withhold payment of any invoice because part of that invoice is in dispute.
• 30.5 The Agent may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
• 30.6 The Client agrees that the Agent may amend these terms and conditions at any time. If the Agent makes a change to these terms and conditions, then that change will take effect from the date on which the Agent notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Agent to provide Goods/Equipment to the Client.
• 30.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
• 30.8 The parties must each do all such further acts (and sign any documents) as may be necessary or desirable for effecting the transactions contemplated by these terms and conditions.
• 30.9 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
• 30.10 The Client shall not assign its rights under these terms and conditions or under any other contract to which these terms and conditions apply without the prior written consent of the Agent.
• 30.11 All warranties, terms and conditions given by the Agent (including without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law.
• 30.12 The agreements, obligations and warranties contained in these terms and conditions shall not merge on completion of the transactions contemplated by it but will remain in full force until satisfied.