1. Definitions
1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Growell” means Growell Nurseries Limited, its successors and assigns or any person acting on behalf of and with the authority of Growell Nurseries Limited.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Growell to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Produce” means all Produce or Services supplied by Growell to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Produce’ or ‘Services’ shall be interchangeable for the other).
1.5 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including personal information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using Growell’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.7 “Price” means the Price payable (plus any Produce and Services Tax (“GST”) where applicable) for the Produce as agreed between Growell and the Customer in accordance with clause 9 below.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Produce.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that:
(a) the supply of Produce on credit shall not take effect until the Customer has completed a credit application with Growell and it has been approved with a credit limit established for the account; and
(b) in the event that the supply of Produce request exceeds the Customers credit limit and/or the account exceeds the payment terms, Growell reserves the right to refuse Delivery.
2.5 The Customer accepts and agrees to maintain and follow Growell’s preferred methods; principles and rules in respect of Growell’s Produce brand, details pertaining to such shall be provided at the time of signing this contract. Failure to comply with this clause will result to immediate suspension and/or termination of the supply of Produce.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Out of Stock/Substitution
3.1 Growell will use its reasonable endeavours to ensure that all Produce ordered by the Customer is supplied to the Customer. If the Produce ordered is not available in stock, Growell shall work with the Customer on a case by case basis where options may include back order of Produce or amendment to the order.
4. Distribution of Produce via an Approved Distributors
4.1 The Customer agrees that until they are authorised as a distributor by Growell, (and hereinafter the Customer shall be referred to as “Distributor” for the purposes of this clause) the Distributor shall not be able to sell the Produce on as a Distributor for Growell or represent to any third parties that the Distributor is in any way acting for Growell. Growell shall not accept responsibility or agree to be bound in any way by any contracts with third parties to whom the Distributor is a party.
4.2 At Growell’s sole discretion the Distributor acknowledges that only approved Distributors shall have the authority to accept internet orders via their respective website and/or any alternative online auction sites.
4.3 Orders from a Distributor are accepted on the basis that;
(a) unless otherwise agreed by prior approval between Growell and the Distributor, Produce may only be resold to consumers at retail level and may not be sold at wholesale level or to any other trader that is known or is suspected to be purchasing for resale, and
(b) Produce is to be sold for retail or displayed for sale at only the nominated locations advised by the Distributor to Growell, and
(c) sale of Produce by internet or any other method outside of the traditional display and sell at the approved location is prohibited without prior written consent of Growell, and
(d) Produce is to be displayed, presented and marketed in the manner that is in the best interest of the brand name, no other supplier substitutions are allowed unless authorisation is granted in writing by Growell; and
(e) minimum orders are maintained as agreed between the two parties, any variations below this threshold will be subject to Price adjustment at Growell’s discretion.
4.4 Any default of clauses 4.1-4.3 may at Growell’s sole discretion be subject to immediate and permanent closure of account facilities, with any account balances payable immediately on demand.
4.5 Growell has sole discretion on which brands or Produce is made available to any approved Distributor and Growell does not guarantee continuing supply of any specific brand or Produce.
5. Online Ordering
5.1 The Customer acknowledges and agrees that:
(a) Growell does not guarantee the website’s performance or availability of any of its Produce; and
(b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
(c) there are inherent hazards in electronic distribution and as such Growell cannot warrant against delays or errors in transmitting data between the client and Growell including orders. The Customer agrees that to the maximum extent permitted by law, Growell will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders.
5.2 Growell reserves the right to terminate the Customer’s order in the event that Growell learns that the Customer has provided false or misleading information, interfered with other users or the administration of Growell’s Services, or violated these terms and conditions.
6. Errors and Omissions
6.1 The Customer acknowledges and accepts that Growell shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Growell in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Growell in respect of the Services.
6.2 In the event such an error and/or omission occurs in accordance with clause 6.1, and is not attributable to the negligence and/or wilful misconduct of Growell; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
7. Authorised Representatives
7.1 The Customer acknowledges that Growell shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to Growell, that person shall have the full authority of the Customer to order any Services, Produce and/or to request any variation thereto on the Customer’s behalf. The Customer accepts that they will be solely liable to Growell for all additional costs incurred by Growell (including Growell’s profit margin) in providing any Services, Produce or variation/s requested thereto by the Customer’s duly authorised representative.
8. Change in Control
8.1 The Customer shall give Growell not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by Growell as a result of the Customer’s failure to comply with this clause.
9. Price and Payment
9.1 At Growell’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Growell to the Customer; or
(b) the Price as at the date of Delivery of the Produce according to Growell’s current price list; or
(c) Growell’s quoted price (subject to clause 9.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
9.2 Growell reserves the right to change the Price:
(a) if a variation to the Produce or Services to be provided is requested; or
(b) if during the course of the Services, the Produce cease to be available from Growell’s third party suppliers, then Growell reserves the right to provide alternative Produce, subject to prior confirmation and agreement of both parties; or
(c) in the event of increases to Growell in the cost of labour or materials which are beyond Growell’s control.
9.3 Variations will be charged for on the basis of Growell’s quotation, and will be detailed in writing, and shown as variations on Growell’s invoice. The Customer shall be required to respond to any Price variation submitted by Growell within five (5) business days. Failure to do so will entitle Growell to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
9.4 At Growell’s sole discretion a non-refundable deposit may be required.
9.5 Time for payment for the Produce being of the essence, the Price will be payable by the Customer on the date/s determined by Growell, which may be:
(a) on Delivery of the Produce for non account holders;
(b) by way of instalments/progress payments in accordance with Growell’s payment schedule;
(c) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(d) the date specified on any invoice or 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 Customer by Growell.
9.6 Payment may be made by cash, electronic/on-line banking, or by any other method as agreed to between the Customer and Growell.
9.7 Growell may in its discretion allocate any payment received from the Customer towards any invoice that Growell determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Growell may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Growell, payment will be deemed to be allocated in such manner as preserves the maximum value of Growell’s Purchase Money Security Interest (as defined in the PPSA) in the Produce.
9.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Growell nor to withhold payment of any invoice because part of that invoice is in dispute.
9.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Growell an amount equal to any GST Growell must pay for any supply by Growell under this or any other contract for the sale of the Produce. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
10. Delivery of Produce
10.1 Delivery (“Delivery”) of the Produce is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Produce at Growell’s address; or
(b) Growell (or Growell’s nominated carrier) delivers the Produce to the Customer’s nominated address even if the Customer is not present at the address.
10.2 At Growell’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
10.3 Any time specified by Growell for Delivery of the Produce is an estimate only. The Customer must take Delivery by receipt or collection of the Produce whenever they are tendered for Delivery. Growell will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. In the event that the Customer is unable to take Delivery of the Produce as arranged then Growell shall be entitled to charge a reasonable fee for redelivery and/or storage.
10.4 Growell may deliver the Produce in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
11. Risk
11.1 If the Customer requests Growell to leave Produce outside Growell’s premises for collection or to deliver the Produce to an unattended location then such Produce shall be left at the Customer’s sole risk.
11.2 Due to the nature of fresh Produce Growell does not guarantee the supply of any specific type of Produce at any particular time (including but not limited to the weather conditions, adverse growing season, etc.).
11.3 Growell shall not be liable for any defect, deterioration, contamination (including contamination that may lead to any food borne illness as a result of human consumption) and/or damage to the Produce:
(a) if the Customer does not follow Growell’s or industry best practice recommendations with regard to storage and/or handling of the Produce;
(b) where Produce is stored for extended periods of time as a result of any action/inaction (including due to the over ordering of Produce) by the Customer.
12. Compliance of Law
12.1 Growell warrants that Produce grown on its registered premises, and supplied to all Customers, shall meet all safety regulations and standards as defined by the Hazard Analysis and Critical Control Points (HACCP), Food Safety Programme, and is eminently suitable for public consumption and thereby compliant with the Australia New Zealand Food Standards Code.
12.2 Any alleged claims of contamination, accidental inclusion or food borne illnesses must be reported to Growell’s management in writing as soon as reasonable practicable. Growell reserves the right to inspect any items attributed to the claim and have the items tested by an independent laboratory before any public claims, statements or dissemination of information in any format including social media.
13. Title
13.1 Growell and the Customer agree that ownership of the Produce shall not pass until:
(a) the Customer has paid Growell all amounts owing to Growell; and
(b) the Customer has met all of its other obligations to Growell.
13.2 Receipt by Growell 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.
13.3 It is further agreed that until ownership of the Produce passes to the Customer in accordance with clause 13.1:
(a) the Customer is only a bailee of the Produce and must return the Produce to Growell on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Produce on trust for Growell and must pay to Growell the proceeds of any insurance in the event of the Produce being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Produce other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Produce then the Customer must hold the proceeds of any such act on trust for Growell and must pay or deliver the proceeds to Growell on demand;
(d) the Customer should not convert or process the Produce or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Growell and must sell, dispose of or return the resulting product to Growell as it so directs;
(e) the Customer irrevocably authorises Growell to enter any premises where Growell believes the Produce are kept and recover possession of the Produce;
(f) Growell may recover possession of any Produce in transit whether or not Delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over the Produce nor grant nor otherwise give away any interest in the Produce while they remain the property of Growell; and
(h) Growell may commence proceedings to recover the Price of the Produce sold notwithstanding that ownership of the Produce has not passed to the Customer.
14. Personal Property Securities Act 1999 (“PPSA”)
14.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Produce and/or collateral (account) – being a monetary obligation of the Customer to Growell for Services – that have previously been supplied and that will be supplied in the future by Growell to the Customer.
14.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Growell may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Growell for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Produce charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Produce and/or collateral (account) in favour of a third party without the prior written consent of Growell; and
(d) immediately advise Growell of any material change in its business practices of selling the Produce which would result in a change in the nature of proceeds derived from such sales.
14.3 Growell and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
14.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
14.5 Unless otherwise agreed to in writing by Growell, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
14.6 The Customer shall unconditionally ratify any actions taken by Growell under clauses 14.1 to 14.5.
14.7 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of Growell agreeing to supply the Produce, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The Customer indemnifies Growell from and against all Growell’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Growell’s rights under this clause.
15.3 The Customer irrevocably appoints Growell and each director of Growell as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.
16. Defects and Returns
16.1 The Customer shall inspect the Produce on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify Growell of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Growell an opportunity to inspect the Produce within a reasonable time following delivery if the Customer believes the Produce is defective in any way. If the Customer shall fail to comply with these provisions the Produce shall be presumed to be free from any defect or damage. For defective Produce, which Growell has agreed in writing that the Customer is entitled to reject, Growell’s liability is limited to either (at Growell’s discretion) replacing the Produce or repairing the Produce.
16.2 Produce will not be accepted for return other than in accordance with 16.1 above, and provided that:
(a) Growell has agreed in writing to accept the return of the Produce; and
(b) the Produce are returned at the Customer’s cost within two (2) days of the delivery date; and
(c) Growell will not be liable for Produce which have not been stored/refrigerated or used in a proper manner; and
(d) the Produce 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.
17. Consumer Guarantees Act 1993
17.1 If the Customer is acquiring Produce for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Produce by Growell to the Customer.
18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Growell’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Customer owes Growell any money the Customer shall indemnify Growell from and against all costs and disbursements incurred by Growell in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Growell’s collection agency costs, and bank dishonour fees).
18.3 Further to any other rights or remedies Growell may have under this Contract, if a Customer has made payment to Growell, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Growell under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
18.4 Without prejudice to Growell’s other remedies at law Growell shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Growell shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Growell becomes overdue, or in Growell’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Growell;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
19. Cancellation
19.1 Without prejudice to any other remedies Growell may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Growell may suspend or terminate the supply of Produce to the Customer. Growell will not be liable to the Customer for any loss or damage the Customer suffers because Growell has exercised its rights under this clause.
19.2 Growell may cancel any contract to which these terms and conditions apply or cancel Delivery of Produce at any time before the Produce are delivered by giving written notice to the Customer. On giving such notice Growell shall repay to the Customer any money paid by the Customer for the Produce. Growell shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Customer cancels Delivery of Produce the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Growell as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.4 Cancellation of orders for Produce made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20. Privacy Policy
20.1 All emails, documents, images or other recorded information held or used by Growell is Personal Information as defined and referred to in clause 20.3 and therefore considered confidential. Growell acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Growell acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Growell that may result in serious harm to the Customer, Growell will notify the Customer in accordance with the Act and/or the GDPR. Any release of such personal information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to Growell in respect of Cookies where the Customer utilises Growell’s website to make enquiries. Growell agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Growell when Growell sends an email to the Customer, so Growell may collect and review that information (“collectively Personal Information”)
If the Customer consents to Growell’s use of Cookies on Growell’s website and later wishes to withdraw that consent, the Customer may manage and control Growell’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
20.3 The Customer authorises Growell or Growell’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by Growell from the Customer directly or obtained by Growell from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
20.4 Where the Customer is an individual the authorities under clause 20.3 are authorities or consents for the purposes of the Privacy Act 1993.
20.5 The Customer shall have the right to request Growell for a copy of the Personal Information about the Customer retained by Growell and the right to request Growell to correct any incorrect Personal Information about the Customer held by Growell.
21. Service of Notices
21.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
21.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
22. Trusts
22.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Growell may have notice of the Trust, the Customer covenants with Growell as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not without consent in writing of Growell (Growell will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
23. General
23.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23.2 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.
23.3 Growell shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Growell of these terms and conditions (alternatively Growell’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Produce).
23.4 Growell may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
23.5 The Customer cannot licence or assign without the written approval of Growell.
23.6 Growell may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Growell’s sub-contractors without the authority of Growell.
23.7 The Customer agrees that Growell may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Growell to provide Produce to the Customer.
23.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
23.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
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