Terms & Conditions
WILDERNEST GENERAL EVENT CONTRACT TERMS
1. Introduction
1.1 The terms of this Agreement shall apply to the exclusion of all other terms and conditions that the Client may tender. Wildernest will only contract on the terms of this Agreement.
1.2 Unless Wildernest forwards to the Client a different form of General Terms and Conditions, these General Terms and Conditions will apply to all contracts between the parties for the provision of Goods and/or the performance of Services, subject to completion of an appropriate Schedule in each case.
2. Definitions and interpretation
2.1 In this Agreement:
“Agreement” means the front page, these General Terms and Conditions and any Schedules construed together.
“Business Day” means any day other than a Saturday, a Sunday or a public holiday in New Zealand.
“Confidential Information” means all information, in any form, relating to the business or prospective business, current or projected plans of a Party, except where the information:
(a) is in the public domain (otherwise than by a breach of this Agreement); or
(b) is already in the possession of the recipient party or subsequently comes into the possession of the recipient party from a third party, without any duty of confidentiality imposed or implied.
“Employees” means Wildernest’s employees, agents, and subcontractors.
“Event” means the #.
“Force Majeure Event” means any event or circumstances beyond the reasonable control of a Party, including without limitation, fire, flood, explosion, earthquake, storm or other natural disaster, epidemic, pandemic, quarantine or gathering restrictions imposed by any lawful authority, civil commotion, hostilities (whether war is declared or not), sabotage, terrorist attack, or the acts or decisions of any governmental, public or judicial authority (otherwise than pursuant to the act or default of the Party concerned) or the imposition of any independent government sanction, embargo or similar action made after the date of this Agreement, loss or destruction or damage to any equipment to be provided by Wildernest pursuant to this Agreement where Wildernest is unable cost-effectively to replace or repair the equipment in time to meet its obligations pursuant to this Agreement, any inability or refusal by any third party to provide or any delay in any Third Party Provider in being able to provide any Goods or Services or any failure by or inability of a Third Party provider to provide the venue on the date agreed between Wildernest and the Customer (if venue hire is a Service to be provided under this Agreement).
“GST” means goods and services tax payable pursuant to the Goods and Services Tax Act 1985;
“Insolvency Event” means in relation to a Party, where:
(a) that Party becomes unable to pay its debts as they fall due; or
(b) a statutory demand is served, a liquidator, receiver, receiver and manager including a statutory manager, administrator, or any similar person, is appointed to the Party or to any of its assets or a compromise with creditors is entered into; or
(c) a Party is adjudicated bankrupt or commits any act of bankruptcy.
“Intellectual Property Rights” means any current and future intellectual property rights belonging to a party, including:
(a) copyrights, trademarks, trade names, domain names, rights in logos and get-up, inventions, confidential information, trade secrets and know-how including commercial know-how, design rights, patents, utility models, semi-conductor topographies, all rights of whatsoever nature in computer software and data, rights in databases, privacy rights; and
(b) all intangible rights and privileges of a nature similar, analogous or allied to any of the above;
in every case in any part of the world and whether or not registered, including in relation to the above, all granted registrations and all applications for registration, all renewals, reversions or extensions, the right to sue for damages for past infringement and all forms of protection of a similar nature which may subsist anywhere in the world.
“Net Profit” means the total of all amounts that would be payable by the Client under this Agreement for the Services if the Agreement were to run its course, less all cost and expenses that would have been incurred by Wildernest in providing the Services. Costs and expenses do not include any cancellation fees payable by Wildernest to any Third Party Provider.
“Party” means a party to this Agreement and their successors and permitted assigns;
“Prices” means the prices set out in Schedule One, at which Wildernest shall supply Goods to, and/or perform Services for, the Client;
“Third Party Provider” means a third party through whom Wildernest provides any Goods or Services to the Client or a third party who provides any Goods or Services to Wildernest so that Wildernest can provide those Goods or Services directly to the Client.
3. Commencement and Term
This Agreement begins on the date it has been signed by all of the Parties and continues for the Term unless terminated earlier in accordance with the clause 9.
4. Wildernest’s and Client’s Respective Obligations
4.1 Wildernest shall:
(a) supply the Goods and perform the Services in accordance with the provisions of Schedule One, subject to the provisions of this Agreement;
(b) use its best endeavours to engage and retain enough Employees to supply the Goods and perform the Services to a high and professional standard;
(c) devote such time as is necessary to give the Client the full benefit of Wildernest’s knowledge, expertise, and skills in the provision of the Goods and the performance of the Services;
(d) ensure that all requirements and arrangements necessary for Wildernest to provide the Goods and perform the Services are organised by Wildernest at its expense, subject to the provisions of this Agreement;
(e) comply with any applicable laws, statutes, regulations, and codes of practice relating to the provision of the Goods and the performance of the Services to the extent that Wildernest provides Goods or Services itself (as opposed to procuring Goods or Services through a third party –for example, Wildernest has no control over the Venue if it is provided by the third party or the Client);
(f) keep detailed records and accounts of all expenses incurred by it in relation to the provision of the Goods and performance of the Services and make such records and accounts available for inspection by the Client at its reasonable request; and
(g) work and co-operate with the Client’s personnel and with any other personnel notified to it by the Client. and
(h) where the Client owns or leases or has arranged the Venue, obey all lawful instructions given by the Client or by the owner of the venue in relation to Wildernest’s access to the Venue.
4.2 Wildernest must immediately inform the Client if Wildernest knows or believes that it will not be, or that it will be unlikely to be, able to deliver all or any of the Goods or perform all or any of the Services by the date required by the Client.
4.3 Without limiting any other obligations of the Client under this Agreement, whether express or implied, the Client will:
(a) co-operate with Wildernest and any Third Party Providers to enable Wildernest and any Third Party Providers to deliver the Goods or the Services pursuant to this Agreement;
(b) take all reasonable care to ensure that neither the Client nor any persons attending the Event will misuse or damage or destroy or lose any Goods that are provided by Wildernest or by any Third Party Providers for the Event pursuant to this Agreement and that are to be returned to or collected by Wildernest or by any Third Party Providers after the Event;
(c) comply with any health and safety obligations that the Client will have under the law;
(d) indemnify Wildernest against any cost expense loss or liability that it may incur or suffer as a result of the breach of any of clauses 4.3(a)-(c) inclusive;
4.4 Without limiting clause 4.3(c), the Client will comply with all reasonable directions from Wildernest, or from any proprietor of any premises where the Event is held, to ensure that persons attending the Event act responsibly, including without limitation where they are acting in such a way as to put their or other persons’ health and safety at risk.
4.5 The Client shall have no right or authority, express or implied, to commit (or purport to commit) or otherwise obligate Wildernest in any manner or to make any statements or representations on behalf of Wildernest except to the extent (if any) specifically provided in this Agreement.
5. Ordering, Supply, and Delivery of Goods
5.1 Wildernest shall deliver the Goods in full to the location, and during the times, specified by the Client, in accordance with and by the due date specified in the relevant order (or such other date agreed in writing between the parties).
5.2 Goods ordered by the Client are at Wildernest's risk until delivered to the specified address or venue. Title in the Goods passes to the Client on payment.
5.3 If the Client is entitled to reject any Goods delivered under this Agreement and does so, Wildernest must promptly collect them from the delivery location at its own expense. Wildernest bears the risk in respect of any rejected Goods.
6. Prices
6.1 The Client will, on receipt of a valid GST invoice from Wildernest (“Invoice”), pay Wildernest within 5 Business Days of the due date for payment stated in the Invoice, except in the case of a bona fide dispute. Should payment not be made on the due date, then without prejudice to any other rights or remedies that Wildernest may have, Wildernest may:
(a) charge interest on the overdue payment at a rate equal to the per annum interest rate charged by Wildernest’s main trading bank on commercial overdrafts at the time that payment was due, with the interest being calculated on a daily basis from the date that payment was made until the date of full payment in cleared funds. If the amount of interest is not paid together with the payment of the overdue amount, interest at the said rate and in the said manner will apply to the amount of interest that has not been paid; and/or
(b) suspend the provision of any Goods or Services until the overdue amount (and any interest charged under clause 6.1(a) is paid.
6.2 Prices are inclusive of all packaging, delivery, and other expenses incurred by Wildernest but unless stipulated otherwise, exclude GST (which is payable by the Client). Prices shall be stated in and paid in New Zealand dollars.
6.3 If there is any dispute relating to any Invoice, the Client must pay any undisputed amount and the parties shall follow the provisions of clause 26 as to dispute resolution in relation to the disputed amount
6.4 Where Schedule One includes costs as charged to Wildernest by a Third Party Provider, those costs will be charged to the Client, without mark up, in a tax invoice from Wildernest. Where any Third Party Provider has estimated the cost of the Services to be provided by the Third Party Provider, this will be identified as being estimated in Schedule One. When the final cost of those services has been invoiced to Wildernest by the Third Party Provider, Wildernest will include the amount of the Services (or if the estimated amount has been invoiced to the Client, the amount of the difference between the estimated and final amounts) in a tax invoice to the Client, which the Client will pay. In addition, Wildernest may charge for any Service that it has provided directly to the Client where the cost is estimated in Schedule One and the actual cost is more than the amount set out in Schedule One (because the time required to provide Service exceeds the time that was originally estimated by Wildernest).
6.5 Wildernest will require payment by the Client of any amount that Wildernest will have to pay under a Third-Party Provider contract at least 3 full Business Days in advance of Wildernest having to pay the amount to the third party.
6.6 The Client may at any reasonable time request additional Goods or Services. Wildernest will provide those Goods or Services if it is reasonably able to do so and if the parties have agreed in writing on the cost and timing of delivery or provision of those Goods or Services. Payment must be made within 5 Business Days of the date of invoice.
7. Weather-Related Costs
7.1 The Client must pay any additional costs that are incurred due to weather.
8. Warranties
8.1 Wildernest warrants, represents, and undertakes that:
(a) Services provided by Wildernest directly (as opposed to by or through a Third Party Provider) shall be performed with the utmost skill, care, and diligence, in an efficient, competent, and professional manner and in accordance with best industry practice – where any Services will be provided through a Third Party Provider, Wildernest will use reasonable endeavours to satisfy itself that the Third Party Provider is reputable and reliable.
(b) any person used by Wildernest to perform any part of the Services shall be suitably qualified and skilled to perform the Services;
(c) Goods supplied to, and Services performed for, the Client directly by Wildernest (as opposed to through or by a Third Party Provider) under this Agreement will not infringe the Intellectual Property Rights of any third party;
(d) it holds all relevant permits, licences and authorisations necessary to supply the Goods and perform the Services that it will supply directly (as opposed to through or by a Third Party Provider) and to enable it and its Employees to comply with its obligations under this Agreement or that where a Third Party Provider must hold any such permit, licence, or authorisation, Wildernest will make reasonable inquiries to ascertain whether the Third Party Provider holds the same);
(e) the Goods to the extent supplied directly by Wildernest (as opposed to through or by a Third Party Provider) will be of satisfactory quality and the Goods and Services will be fit for the purpose for which they are intended - where any Goods will be provided through a Third Party Provider, Wildernest will use reasonable endeavours to ensure that the Third Party Provider is reputable and reliable; and
(f) it will not do any act, or omit to do any act, that may cause or is likely to cause damage to, adversely affect, or otherwise bring into disrepute the good name, reputation, or image of:
(i) the Event;
(ii) the Client ;
8.2 Each party warrants, represents and undertakes to the other that it has the power to enter into and to execute, deliver and perform its obligations under this Agreement, and that entering into this Agreement will constitute binding obligations upon it.
8.3 All conditions guarantees and warranties (including any that would or could otherwise be implied, whether by statute or otherwise) other than the warranties in clauses 8.1 and 8.2 are excluded.
8.4 Without limiting clause 8.3, if the Consumer Guarantees Act 1993 applies to this Agreement, the Parties both being in trade contract out of the Act. If the Client is deemed to be a consumer under the Fair Trading Act 1986 and if this Agreement is deemed to be a standard form consumer contract under that Act, the Parties both being in trade contract out of sections 9, 12A, and 13 of that Act.
8.5 Wildernest will not under any circumstances be liable for any loss of income or turnover, loss of profit, or loss of goodwill suffered by the Client. The maximum liability of Wildernest to the Client for any reason, under any circumstances, whether in contract, tort (including negligence), equity, restitution, or otherwise will be the lesser of $50,000.00 or the total amount that is payable to Wildernest by the Client under this Agreement.
9. Termination
9.1 The Client may terminate this Agreement immediately by notice in writing to Wildernest:
(a) if any event occurs which, in the reasonable opinion of the Client, would have a significant adverse effect on Wildernest’s ability to comply with this Agreement (including, without limitation, the disposal by Wildernest of all or a material part of its business);
(b) if Wildernest notifies the Client pursuant to clause 4.2 that it is unable to deliver the Goods or provide the Services (other than due to Force Majeure); or
(c) if Wildernest ceases or threatens to cease conducting its business in the normal manner.
(d) if Wildernest becomes the subject of an Insolvency Event; or
(e) in accordance with clause 17 (Force Majeure).
9.2 This Agreement is a binding contract between the parties so that the Client has no right to terminate this Agreement other than as provided by this Agreement or by the general law. Where the Client wishes to cancel the Event (which would require termination of this Agreement) because they have changed their mind or because of changed circumstances, clause 10.2 shall apply if Wildernest agrees to the cancellation (which it will be under no obligation to do).
9.3 Wildernest may terminate this Agreement:
(a) if the Client fails to pay any sum due and owing to Wildernest within 3 Business Days of demand by Wildernest for payment; or
(b) if the Client ceases or threatens to cease conducting its business in the normal manner; or
(c) if the Client (or any person comprising the Client, where more than one person comprises the Client) becomes the subject of an Insolvency Event; or
(d) in accordance with clause 17 (Force Majeure)..
10. Consequences of Termination
10.1 Background:
Wildernest offers a one-stop-shop service, whereby in relation to the Event, it may have to contract with Third-Party Providers (for example, for venue hire). Accordingly, termination of this Agreement for any reason may attract consequences for Wildernest under Third Party Provider contracts, which may include putting Wildernest in breach of one or more Third Party Provider contracts or regardless, may impact on what cancellation fee is payable by Wildernest to a Third Party Provider or what refund may be obtainable by Wildernest to a Third Party Provider.
10.2 Termination by Client: Should the Client wish to terminate this Agreement[SD6] :
(a) where the termination is for any reason (including, to avoid any doubt, clause 9.2), the Client must pay for all Services that have been provided to the Client (whether or not already invoiced), or for which Wildernest has incurred costs or expenses, or which have been ordered or arranged by Wildernest where Wildernest cannot cancel the order or arrangement and obtain a full refund; and
(b) where the termination is pursuant to clause 9.1(e) (force majeure) or clause 9.2, on receipt of a tax invoice from Wildernest, the Client must pay all cancellation fees that are payable by Wildernest to any Third Party Provider and, if not already paid by the Client to Wildernest, all monies that have been paid or that are required to be paid by Wildernest under any Third Party Provider Contracts that will not be refunded to Wildernest and all monies that are required to be paid by Wildernest under any Third Party Provider Contracts despite the termination; and
(c) where the termination is pursuant to clause 9.1(e) (force majeure) or clause 9.2, on receipt of a tax invoice from Wildernest, the Client must pay the dismantling costs set out in Schedule One (where those costs will be incurred).
10.3 Refunds:
Wildernest’s ability to provide an agreed refund to the Client on termination of this Agreement where the termination will also affect a Third Party Provider contract will be subject to what refund Wildernest can obtain from the third party. Subject to that limitation, if this Agreement is terminated by the Client pursuant to clause 9.1 or by Wildernest pursuant to clause 9.3(d) , the Client will be entitled to a refund for all money paid by the Client to Wildernest for Services that will not be provided e.g. Wildernest labour charges that will not be incurred or provided, and for which Wildernest has not incurred
Wildernest labour charges that will not be incurred or provided, and will not incur any cost or expense.
10.4 Termination by Wildernest and Cancellation Fee payable by Client:
If termination is pursuant to clause 9.2 or clause 9.3, the Client must pay (upon receipt of a tax invoice from Wildernest), the total of:
(a) the contract price for all Services that have been provided to the Client (whether or not already invoiced) and all costs or expenses incurred in accordance with this Agreement by Wildernest (whether or not invoiced to Wildernest by any Third Party Providers) in relation to any Services that have not yet been provided to the Client where those costs or expenses will not be refunded to Wildernest; and
(b) all cancellation fees that are payable by Wildernest to any Third Party Provider and, if not already paid by the Client to Wildernest, all monies that have been paid by
Wildernest under any Third Party Provider Contracts that will not be refunded to Wildernest; and
(c) all dismantling costs as set out in Schedule One (to the extent to which they will be incurred); and
(d) 50% of the Net Profit (credit will be given for any payments already made by the Client e.g. by way of deposit), other than where clause 9.3(e) applies.
Should the Client have paid to Wildernest more than the amounts payable under clause 10.4, the balance will be refunded.
10.5 Termination is without prejudice:
Termination or expiry of this Agreement will not affect the rights or liabilities of either party accrued prior to and including the date of termination or expiry, subject to any express provisions of this Agreement, will not affect any terms intended expressly or by implication to survive termination or expiry.
11. Postponement of Event or Change of Venue
11.1 Subject to clause 11.2, if the Parties agree to postpone the Event (or any part of it) or it is agreed to move to a different venue other than the Venue, Wildernest shall use its best endeavours to continue to provide the Goods and perform the Services in accordance with the Variation.
11.2 Clause 11.1 is subject to the Parties agreeing on any variation, that either party considers is required due to the postponement or change of venue, to the price of any Goods or Services that are yet to be provided pursuant to this Agreement. If the Parties can’t agree on the need for a variation or on the amount of any variation, either party may terminate this Agreement, in which case the termination will be deemed to be a termination pursuant to clause 9.2.
12. Confidentiality
12.1 Save as is otherwise required by law or any regulatory authority, each Party undertakes to the other that during and after the Term it shall keep secret and shall not without the prior written consent of the other Party disclose to any third party, except its legal and professional advisors and, in the case of Wildernest, its Employees (provided that before disclosure, the disclosing party must make such persons aware of their obligations of confidentiality under this Agreement), any Confidential Information belonging to the other Party.
12.2 Upon termination or expiry of this Agreement for any reason, each Party shall immediately return all Confidential Information belonging to the other which it holds, or if instructed shall arrange for its immediate destruction.
13. Insurance
13.1 Nothing in this Agreement is intended and nor shall it be construed as an attempt by any Party to exclude or limit its liability where this liability cannot be excluded or limited under New Zealand law.
14. Security
14.1 Where Wildernest has contracted with a Third Party Provider to provide the Venue and the Third Party Provider has any security or other requirements in relation to access to or the use of the Venue, Wildernest will advise the Client of the requirements and the Client will comply with the requirements and ensure that any invitees of the Client (which include without limitation any of its employees, contractors, directors, and shareholders) comply with the requirements. The Client will indemnify Wildernest against any cost expense or liability that it may incur to the Third Party Provider as a result of any breach of this clause by the Client.
14.2 Where the Client provides the Venue, Wildernest will comply with all reasonable requirements of the Client notified in writing to Wildernest in relation to access of the Venue by Wildernest and as to security (in so far as Wildernest can reasonably comply with security requirements).
15. Assignment and Subcontracting
15.1 The Client must not (except with the prior written consent of Wildernest) assign or transfer any of its rights or obligations under this Agreement.
15.2 Wildernest may :
(a) assign any of its rights under this Agreement; and/or
(b) transfer any of its obligations under this Agreement; and/or
(c) sub-contract or delegate any of its obligations under this Agreement; and/or
(d) charge or deal in any other manner with this Agreement or any of its rights or obligations.
15.3 Should Wildernest consent to any assignment by the Client under clause 15.1, the Client shall remain liable to Wildernest for the performance or compliance with all of the Client’s obligations under this Agreement, which means that it will be liable for any failure by the assignee to perform or comply with any of those obligations.
16. Non-waiver
Any failure or delay in enforcing an obligation or exercising a right, under this Agreement, does not amount to a waiver of that obligation or right. The waiver of a breach of a term of this Agreement does not amount to a waiver of any other term. A waiver of a breach of any of the terms of this Agreement shall not prevent a party from subsequently requiring compliance with the waived obligation.
17. Force majeure
17.1 Neither Party will be liable to the other for its inability or failure to perform, nor delay in performing, any of its obligations under this Agreement, where this is caused by a Force Majeure Event, provided such Party complies with clause17.2.
17.2 If a Force Majeure Event occurs of which only one Party is aware, the Party affected will immediately notify the other Party of the nature and likely duration (if known) of the Force Majeure Event and take all reasonable steps that can be taken to reduce the effect of the Force Majeure Event. If the Force Majeure Event occurs to the knowledge of both Parties, they will take all reasonable steps that can be taken to reduce the effect of the Force Majeure Event.
17.3 Where the Force Majeure Event is the inability or refusal by a Third Party Provider to provide the Venue or any delay by the Third Party Provider in being able to provide the Venue or any restriction or temporary prohibition imposed by any lawful authority on holding the Event, the Parties will discuss whether the Venue can be changed or the Event can be postponed (as the case may be) to an agreed date. In that regard, clause 11 applies.
17.4 Subject to clause 17.3, if the Force Majeure Event continues for a period of 30 days or more, either Party may terminate this Agreement immediately on written notice to the other, provided such Force Majeure Event is continuing at the date of termination or the Parties can agree to terminate. Should this Agreement be terminated pursuant to this clause 17.4, then the provisions of clause 12.2 shall apply as if clause 12.2 referred to termination pursuant to this clause 17.4.
17.5 Unless this Agreement is terminated under clause17.4, the Party affected by the Force Majeure Event will notify the other Party as soon as its performance of its obligations under this Agreement is no longer prevented due to the Force Majeure Event.
18. No partnership
Nothing in this Agreement shall be construed to create any partnership or joint venture between the parties.
19. Remedies not exclusive
No remedy conferred by any provisions of this Agreement is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing in law or in equity or by statute or otherwise.
20. Severability
If any provision of this Agreement is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of this Agreement will remain in full force and effect and will not in any way be impaired.
21. Entire agreement
21.1 This Agreement constitutes the whole agreement and understanding between the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements, negotiation and discussions between the Parties relating to the subject matter of this Agreement.
21.2 The Client acknowledges and agrees that it has not entered into this Agreement in reliance on any statement or representation by or on behalf of Wildernest other than as expressly incorporated in this Agreement. Wildernest will not be liable for any statement or representation that is not expressly set out in this Agreement as a term of this Agreement.
22. Variations
No amendment to this Agreement (including without limitation any additions or amendments to the Schedules) shall be effective unless made in writing and signed by the Parties or their duly authorised representatives.
23. Notices
23.1 Any communication to be given in connection with this Agreement shall be in writing and be delivered by hand or sent by post or by email to the Parties’ addresses on the front page of this Agreement.
23.2 A communication sent according to clause 23.1 shall be deemed to have been served:
(a) if delivered by hand at the address referred to in clause 23.1, at the time of delivery;
(b) if sent by pre-paid post to the address referred to in clause 23.1, at the expiration of two clear days after the time of posting in the case of inland post, and five clear days after the time of posting in the case of international post; and
(c) if sent by email to the address referred to in clause 23.1, at the time of completion of transmission by the sender.
24. Costs
Each Party shall pay its own legal, accountancy and other costs arising out of and in connection with this Agreement.
25. Further Assurance
Wildernest covenants with the Client that it shall, at the request of the Client and cost of Wildernest, do all such further acts and execute all such documents as may from time to time be necessary to give effect to this Agreement.
26. Dispute resolution procedure
26.1 If a dispute arises in relation to this Agreement, the Parties must first use all reasonable endeavours to attempt to resolve the dispute amongst themselves. If the Parties agree a resolution of the dispute, they will sign a statement setting out the terms of the resolution and shall ensure that any actions pursuant to this resolution are fully and promptly carried out.
26.2 If the Parties have not resolved the dispute after 10 Business Days (or such longer period as the Parties agree in writing) from the date of a meeting held pursuant to clause 26.1, either Party may commence proceedings in respect of the dispute.
27. Rights of Third Parties
This Agreement shall be binding upon the legal successors and any permitted assigns of the Parties.
28. Client is an Event Company or similar
If the Client enters into this Agreement as an event company, or on any other basis, to procure Goods or Services for its client (End User), the Client understands that it is Wildernest’s Client, not the End User. To avoid any doubt, the Client must pay any sum pursuant to this Agreement at the due date, whether or not its client has paid it.
29. GUARANTOR
29.1 Unless otherwise agreed in writing by Wildernest, if the Client is a Company, this Agreement will only be binding if all of the directors of give a guarantee and indemnity to Wildernest on the terms of this clause 29, which will be done by the directors signing this Agreement as Guarantors.
29.2 Each Guarantor, jointly and severally guarantees the due payment by the Client too Wildernest of all amounts that become owing by the Client to Wildernest pursuant to this Agreement. ). Each Guarantor gives this Guarantee because Wildernest has agreed, at each Guarantor’s request, to enter into this Agreement with the Client.
29.3 Each Guarantor’s liability is that of a principal debtor and Wildernest may enforce this Guarantee against any Guarantor before exercising its rights against the Client and whether or not all Guarantors have signed this Guarantee. Each Guarantor acknowledge that the Guarantors liability will not, to the fullest extent permitted by law, be diminished, released, terminated or affected in any way by anything that would normally diminish, release, terminate or affect the Guarantors liability.
29.4 This Guarantee is a continuing guarantee and remains enforceable against each Guarantor even if an event occurs which would otherwise have the effect of releasing a Guarantor from this Guarantee or diminishing or affecting the Guarantors liability in any way.
29.5 Each Guarantor agrees to reimburse Wildernest for all costs and expenses it incurs in exercising or attempting to exercise its rights under this Guarantee (including without limitation all legal costs on a solicitor and own client basis).
29.6 As a separate and additional covenant, each Guarantor jointly and severally agrees to indemnify Wildernest and keep Wildernest indemnified against all losses and expenses suffered or incurred by Wildernest as the result of any breaches of this Agreement by the Client or as a result of any provision of this Agreement being unenforceable for any reason whatsoever.
29.7 Wildernest may assign, absolutely or by way of security, its rights or its rights and obligations under the Agreement and this Guarantee and references in this Guarantee to Wildernest include its assigns.
29.8 Each Guarantor acknowledges that the Guarantors are not “Debtors” for the purposes of the PPSA and, to the extent permissible by law, waive any notices or rights of a “Debtor” under the PPSA to the extent inconsistent with this Agreement.
30. Signing this Agreement
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument. A facsimile or pdf copy of this Agreement showing a representation of the signature of any party shall be deemed to be an original counterpart. For there to be a binding Agreement where counterparts are signed, each party must have signed at least one counterpart and that each party receives a counterpart or counterparts that have been signed by all of the parties. Unless the parties have agreed on a date or all of the counterparts are dated the same date, the date of the Agreement is the date that the last counterpart is signed and received by all parties.
31. Governing Law and Jurisdiction
31.1 This Agreement is governed by and is to be construed in accordance with New Zealand law.
31.2 The parties irrevocably agree that the courts of New Zealand shall have non-exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement.