1. AGREEMENT

Esemel Limited ("Esemel") agrees to undertake the works referred to in the description to the company or persons specified on the reverse of this agreement ("the customer") and the customer agrees to be bound by the following terms and conditions of supply. It is acknowledged that Esemel is an independent contractor and neither Esemel nor Esemel’s staff is or shall be deemed to be employed by the customer.

2. PERFORMANCE

Esemel will endeavour to complete the works referred to in the description within a reasonable time frame from the date of the invoice. If Esemel is unable to perform any part of this agreement by reason of any event or cause which is beyond the reasonable control of Esemel, including without limitation governmental regulations, any act of God, fire, flood or any disaster, any industrial dispute or unavailability of materials, Esemel shall be excused from such performance to the extent of such prevention. Esemel shall ensure that all work carried out pursuant to the description shall comply with all statutes, regulations and local authority bylaws. Esemel will also ensure that all works undertaken pursuant to the description are completed in a manner that is consistent with good work standards.

3. PRICE AND PAYMENT

It is acknowledged by the customer that the contract price recorded herein has been expressed as an estimate, and as such, does not amount to a quotation unless expressly recorded as such within the terms of this agreement. The price for the provision of works and materials by Esemel shall be as specified and agreed on the reverse of this form ("the contract price"). Payment of the contract price shall be made to Esemel as notified to the customer by Esemel. If payment is not made by the due date, interest may be charged at a rate of 5% per month or part month on all overdue accounts, without prejudice to Esemel’s other rights and remedies. The contract price shall be subject to the applicable taxes of New Zealand, and will be subject to adjustment by Esemel as may be required at law or by any public body or by any change in supplier and production pricing from time to time. Esemel shall notify the customer of any amendments to the contract price in writing. All amounts due under this agreement shall be paid in full without any deduction or withholding and the customer is not entitled to any set-off or counter-claim against Esemel.

4. TITLE

Title to any materials supplied by Esemel in completing the works referred to in the description shall not pass to the customer until payment in full has been received by Esemel as cleared funds. Until such time as payment is made, the customer shall be deemed to hold the materials as bailee for Esemel. If payment is not made by the due date, the customer acknowledges that Esemel shall be entitled to recover the materials. The customer hereby authorises Esemel or its representatives to enter upon any premises where the materials are located to recover the same if the customer fails to deliver the goods to Esemel within 7 days of being requested to do so. The customer acknowledges that Esemel is authorised to convey any information relating to any default by the customer under this agreement to any credit reference and/or collection agency, and shall be entitled to carry out a credit check on the customer with any agency and supply to the agency such information about the customer as is necessary for completing the credit check.

5. INTELLECTUAL PROPERTY

Any original work, process, design or other material of and produced by or supplied by Esemel arising from the performance of this agreement shall remain the property of Esemel, who will have sole and exclusive rights to such intellectual property. Except as specifically set forth in this agreement, Esemel shall have all copyright and patent rights with respect of all materials developed for the customer and the customer is hereby granted a non-exclusive license to use and employ said materials solely within the company’s business.

6. GENERAL

This agreement may only be varied in writing and signed by both parties. No breach of any provision of this agreement shall be waived or discharged except with the express written consent of the parties. This agreement shall represent the entire agreement and understanding of the parties and supercedes all prior agreements or arrangements (oral, written or otherwise) relating to the subject matter of this agreement. If any provision of this agreement is or becomes for any reason whatsoever invalid or unenforceable, it shall be devisable from this agreement and shall be deemed to be deleted from it, and the validity of the remaining provisions shall not be affected in any way. Any dispute arising between the parties arising out of or in connection with this agreement shall in the first instance be addressed by means of good faith negotiations as between Esemel and the customer, such negotiations to be concluded within five working days from the date upon which notification is received by either party as to the existence of the dispute. The customer shall be required to notify Esemel of any dispute within ten working days of discovering the circumstances giving rise to the said dispute, time being of the essence. In the event that the dispute has not been resolved within five working days of notification by way of negotiation then the dispute shall be referred to the arbitration of a single arbitrator (or two arbitrators if the parties are unable to agree on a single arbitrator) in accordance with, or subject to, the provisions of (and amendments to) the Arbitration Act 1996. The costs of such referral shall be borne by the customer. This agreement shall be governed by the laws of New Zealand and subject to the exclusive jurisdiction of the New Zealand Courts.

7. CONSUMER GUARANTEES ACT

In circumstances where the customer is a “consumer” as defined in the Consumer Guarantees Act 1993, and does not use the materials and services as supplied by Esemel for the purposes of a business, then the provisions of this contract which are prohibited by the Consumer Guarantees Act 1993 are deemed to have been deleted from this contract. If the customer is a “consumer” as defined in the Consumer Guarantees Act 1993 but uses the materials and services for the purposes of a business, then the customer agrees that the provisions of the Consumer Guarantees Act 1993 shall not apply and the terms of this contract shall exclusively govern the relationship as between the parties.

8. GUARANTEE

The guarantor as recorded herein hereby guarantees the payment of all money now due or any time or times hereafter to become due and payable to Esemel by the said customer including but not restricted to the following:

(i) The contract price; and
(ii) All other costs resulting from or in accordance with this agreement