OR
FAILURE TO HOLD AN AUTHORISATION IN RESPECT OF THE MOVING SERVICES BUSINESS;
(6)
ANY BREACH OF CONTRACTUAL OBLIGATION;
(7)
THE IDENTIFIED PROCEEDINGS AND THE
CIRCUMSTANCES, ACTIONS, CONDUCT OR OMISSIONS GIVING RISE TO THE IDENTIFIED
PROCEEDINGS; AND
(8)
THE ASSETS AND OPERATIONS AND ANY OTHER
FACT, MATTER, ACTIVITY, EVENT OR CIRCUMSTANCE RELATING DIRECTLY OR INDIRECTLY TO
THE CONDUCT OF THE MOVING SERVICES BUSINESS,
but only to the extent that the Buyer and the New Zealand Buyer (as the case may
be) does not recover in respect of that Loss or Action pursuant to the Purchase
Price adjustment in clause 7.
(C)
THE INDEMNITY PROVIDED IN CLAUSE 8.7(B),
INSOFAR AS IT RELATES TO THE ACCC INVESTIGATION, WILL NOT APPLY TO ANY LOSS
DIRECTLY RESULTING FROM A BREACH BY THE BUYER OF ITS OBLIGATIONS UNDER CLAUSE
10.3.
(D)
CLAUSES 9.4, 9.5, 9.6, 9.7, 9.10 AND 10 DO
NOT APPLY IN RELATION TO THE INDEMNITY PROVIDED IN CLAUSE 8.7(B).
9
QUALIFICATIONS AND LIMITATIONS ON
CLAIMS
9.1
DISCLOSURE
(A)
THE BUYER AND NEW ZEALAND BUYER ACKNOWLEDGE
AND AGREE THAT THE SELLER HAS DISCLOSED OR IS DEEMED TO HAVE DISCLOSED AGAINST
THE WARRANTIES, AND EACH OF THE BUYER AND NEW ZEALAND BUYER IS AWARE OF, AND
WILL BE TREATED AS HAVING ACTUAL KNOWLEDGE OF, ALL FACTS, MATTERS AND
CIRCUMSTANCES WHICH:
(1)
ARE FAIRLY DISCLOSED IN THE DISCLOSURE
MATERIALS; OR
18
(2)
ARE FAIRLY DISCLOSED ON ANY PUBLIC RECORD
MAINTAINED BY ASIC AND AVAILABLE FOR INSPECTION BY THE PUBLIC AS AT THE DATE TWO
BUSINESS DAYS BEFORE THE DATE OF THIS AGREEMENT.
(B)
THE WARRANTIES (OTHER THAN THE TAX
WARRANTIES) ARE GIVEN SUBJECT TO THE DISCLOSURES OR DEEMED DISCLOSURES DESCRIBED
IN CLAUSE 9.1(A). THE SELLER WILL HAVE NO LIABILITY UNDER THE WARRANTIES (OTHER
THAN THE TAX WARRANTIES) TO THE EXTENT THAT DISCLOSURE IS MADE OR IS DEEMED TO
HAVE BEEN MADE AGAINST THE WARRANTIES UNDER THIS CLAUSE 9.1.
(C)
THE BUYER AND NEW ZEALAND BUYER MUST NOT
KNOWINGLY MAKE A CLAIM FOR BREACH OF WARRANTY OR UNDER CLAUSE 8.4 (OTHER THAN A
TAX CLAIM), AND IT SHALL NOT BE A BREACH OF WARRANTY (OTHER THAN A TAX
WARRANTY), IF THE BUYER OR NEW ZEALAND BUYER IS ACTUALLY AWARE THAT THE FACTS,
MATTERS OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIM ARE DISCLOSED OR ARE DEEMED
TO HAVE BEEN DISCLOSED UNDER CLAUSE 9.1(A).
9.2
AWARENESS
Where a Warranty is given "to the best of the Seller's knowledge", or "so far as
the Seller is aware" or with a similar qualification as to the Seller's
awareness or knowledge, the Seller will be deemed to know or be aware of a
particular fact, matter or circumstance only if a Specified Executive is
actually aware of that fact, matter or circumstance as at the date of this
agreement.
9.3
NO RELIANCE
(A)
EACH OF THE BUYER AND NEW ZEALAND BUYER
ACKNOWLEDGES, AND REPRESENTS AND WARRANTS TO EACH SELLER GROUP MEMBER, THAT:
(1)
AT NO TIME HAS ANY BUYER GROUP MEMBER RELIED
ON ANY REPRESENTATION, WARRANTY, PROMISE OR UNDERTAKING IN RESPECT