5. AGREEMENT TO MORTGAGE
Where the customer has failed to attend to payment of any monies due hereunder for a period of 15 working days from the date of demand, the customer hereby irrevocably agrees and acknowledges that, to secure payment of the monies due and owing to GJP, they shall grant a registered mortgage over the land upon which works were undertaken in favour of GJP for the amount due and owing, together with any penalty interest and/or costs of recovery. For the purposes of this clause, if the customer refuses or fails for whatever reason to execute the necessary documentation to effect the mortgage security in favour of GJP, the customer hereby irrevocably appoints GJP, and in particular, their directors, to be the attorney of the customer at any time to execute and sign the mortgage in favour of GJP, procure registration of the mortgage as fully and effectually as the customer could do.
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 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 GJP for the purposes of a business, then the provisions of the 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.
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 GJP 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.