Terms of Trade
1. Definitions and Interpretation
Definitions: In these terms and any Contract to which these terms apply, unless the context otherwise requires:
Business Day means a day, other than a Saturday or Sunday, on which the major trading banks are open for business in Christchurch, New Zealand;
Business Hours means between 9am and 5pm New Zealand Time on a Business Day;
Confidential Information means any information, data and know-how (whether technical or not) stored or imparted in whatever form (written, electronic or otherwise) acquired or received by a Receiving Party from a Disclosing Party under a contract or in connection with these Terms, but excludes information that:
- is or becomes general public knowledge through no fault of the Receiving Party;
- the Receiving Party is able to conclusively prove was known to it prior to the date of receipt of such information from the Disclosing Party (other than by reason of it having been acquired directly or indirectly from a third party under an obligation of confidence to any person in respect of that information);
- was independently developed by the Receiving Party without reference to any information acquired or received by the Receiving Party from the Disclosing Party or directly or indirectly from any third party under an obligation of confidence to any person in respect of that information; or
- the parties agree in writing is not to be treated as Confidential Information;
Contract means a contract for the supply of Product by the supplier to the Buyer, comprised of these Terms and a Purchase Order accepted by the Supplier;
Delivery Date means the date the Product is delivered to the Buyer’s premises;
Delivery Location means the location agreed between the parties and specified in a Purchase Order;
Disclosing Party means the party that discloses or makes available its Confidential Information to the other party;
Force Majeure Event means any or all (and the effects thereof) Acts of God including floods, earthquake, storm, cyclone, tornado, hurricane, lightning, fire, explosion, epidemic, pandemic, war, embargoes, riots or civil disturbances, strikes, failure of telecommunications networks, the order of a court or government authority or governmental restrictions or control of foreign exchange or other labour disputes and any other matter or event which is beyond the control of the Buyer or the Supplier and which the relevant party could not take reasonable measures to prevent;
GST means New Zealand Goods and Services Tax, payable in accordance with the New Zealand Goods and Services Tax Act 1985;
Intellectual Property Rights means all rights to, and interests in, all intellectual property of all types (whether registered or unregistered), including all patents, trademarks, copyrights, circuit layouts, design rights, inventions, know how, trade secrets, all rights in business, product and domain names, and all rights or forms of protection having equivalent or similar effect which may subsist anywhere in the world;
Monitoring Centre means the facility used to receive status reports of, and alerts from, certain Products;
Pack size Quantity means a box of 10 units of the same Product type;
Price means the prices set out in the Supplier’s price list, available on the Web Portal, and as amended from time to time;
Product means the telecare systems, mobile personal emergency response systems, and related products supplied or to be supplied by the Supplier under a Contract;
Purchase Order means an order for the Product by the Buyer stating the quantity of Products required, a Delivery Date, an agreed upon Delivery Location and any other requirements of the Buyer, and incorporating a valid purchase order number prepared by the Buyer and provided to the Supplier in accordance with clause 2;
Receiving Party means a party that holds Confidential Information of the other party;
Rejected Product means any Product that does not comply with the warranty in clause 8.1;
SmartCare® means the range of software from the Supplier that is designed to work with the Product, including but not limited to SmartCare® Office which stores, handles and filters the medical alarm data which it then passes on to the monitoring software, SmartCare® Relay, a CSV data monitoring receiver, SmartCare® Heartbeat used to check the availability of SmartCare® Relay, SmartCare® Locate for mapping GPS coordinates, SmartCare® Response App used for monitoring the Product, and SmartCare® Cloud, used for fleet management of data connected Products;
Specifications means the specifications for the Product as set out in the Web Portal, which may be varied or modified from time to time;
Terms means these terms and conditions, to be read and construed with each Purchase Order accepted by the Supplier;
Web Portal means the Supplier’s customer web portal which can be found at: www.chiptech.co.nz
- Interpretation: In this Agreement, unless the context otherwise requires:
- a reference to:
- ‘including’ (and its similar expressions) shall be interpreted as if followed by ‘without limitation’; and
- any legislation shall (except where expressly stated otherwise) be construed as a reference to that legislation as amended, replaced, consolidated or re-enacted; and
- dollars or $ is a reference to the currency of New Zealand OR Australia as noted in Purchase Order;
- if agreement or consent is required, it must be provided in writing.
- a reference to:
2. Purchase and Sale of Product
- The Supplier agrees to sell and deliver and the Buyer agrees to purchase from the Supplier, the Product in an accepted Purchase Order in accordance with these Terms.
- Each Purchase Order shall be deemed to be a separate offer by the Buyer to purchase the Product, which the Supplier will be free to accept or decline at its absolute discretion. A purchase Order will only be binding on the Supplier once it gives notice to the buyer that it accepts the Purchase Order
- These Terms will apply to every accepted Purchase Order, unless the parties have agreed an alternative arrangement in writing. By placing a Purchase Order, the Buyer confirms its acceptance of these Terms.
3. Price and Payment
- The Buyer must pay to the Supplier, the Price for each Product ordered, all delivery costs (including without limitation the cost of freight) and all other amounts which the Supplier is entitled to charge to the Buyer under these Terms.
- The Price for the Product ordered is exclusive of any applicable GST or other taxes.
- The Buyer must pay to the Supplier any applicable GST, and any other taxes (other than taxes on the Supplier’s net income), duties, levies or imposts that arise or are imposed on or incurred by the Supplier in relation to the supply of the Product and the provision of any services by the Supplier.
- The Supplier will invoice the Buyer in respect of the Price for the Product and other amounts payable under these Terms (Invoice).
- Unless otherwise expressly agreed in writing between the parties, payment of each Invoice will be made by the Buyer on or before the 20th of the month following the date of the Invoice provided by the Supplier to the Buyer.
- Should the Buyer fail to tender due and punctual payment of the full Price or any other amount to be paid by the Buyer in any Invoice, the Supplier shall be entitled to:
- suspend or cancel the fulfilment of the Purchase Order and any of the Supplier’s obligations under any Contract until such payment is made and at the option of the Supplier the Delivery Date of any unfulfilled accepted Purchase Orders shall be extended by the period of such delay in payment; and/or
- charge interest on any amounts overdue from the due date up to the actual date of payment at the rate of two and a half percent (2.5%) per month, and the Supplier shall be entitled to recover payment in full with all interest, costs and expenses accruing.
- Notwithstanding that risk may have passed to the Buyer or that delivery has been completed, the Supplier shall, without prejudice to any other right it may have under these Terms or at law or in equity, have the right, on default of payment of any amounts due to it, to enter the premises of the Buyer and take possession of and remove any Product that is not in use, without being responsible for any damage caused in doing so.
- If the Supplier exercises its right to reclaim any Product it shall be entitled to dispose of the Product for its own benefit and the Buyer shall indemnify the Supplier for:
- any shortfall incurred by it on realisation against the price at which such Product was contracted to be bought by the Buyer; and
- any reasonable costs incurred by the Supplier, as agreed between the parties (and the Buyer must not unreasonably withhold its agreement), in the exercise of its right to reclaim the Product, whether relating to the repossession, storage or resale of the Product (including, but not limited to legal costs).
- Nothing in this clause 3 shall be construed as permitting the Buyer to return the Product or any part of it for any reason.
4. Risk and Title
- Title to the Product sold under a Contract shall pass to the Buyer upon receipt by the Supplier of full payment of the Price in accordance with these Terms and the relevant Purchase Order.
- Risk in the Product shall pass to the Buyer upon delivery to the Delivery Location.
5. Delivery and Transportation
- Delivery and acceptance of the Product shall be deemed to have occurred upon delivery of the Product to the Delivery Location.
- Where the Delivery Location is in a country outside of New Zealand the Buyer is responsible for complying with any import laws or requirements of that country, obtaining any licences, permits or consents required to enable the Products to be imported by the Buyer, and paying any applicable taxes, duties, levies or imposts imposed on or in relation to the Products by any regulatory or governmental agency of that country.
- The Supplier reserves the right to deliver Purchase Orders in quantities that are smaller or larger than the Packsize Quantity.
- The Supplier shall use its best endeavours to deliver all Product by the Delivery Date specified in an agreed Purchase Order, provided that the Supplier shall not, under any circumstances, be liable for any costs, expenses, damages or loss of profits incurred or suffered by the Buyer as a result of any delay in delivery of the Product.
- The Supplier shall ensure that all Product consigned to the Buyer is suitably packed to avoid damage in transit.
- The Supplier agrees that all consignments of Product despatched to the Buyer must have:
- a packing slip; and
- a valid Purchase Order number shown on packing slips and Invoices.
- The Supplier is entitled to hold or delay further deliveries for Purchase Orders that have been received and accepted by the Supplier if the delivery of further Product would increase the outstanding amount due to the Supplier under all Contracts to more than $100,000.00.
- The Buyer must not export any Product, except any exporting that occurs when sending the Product to the Supplier under these Terms.
6. Buyer Obligations
- The Buyer is responsible for obtaining any licences, permits and consents that may be required to use the Product.
- The Buyer is responsible for complying with all relevant laws in the use and re-supply of the Product.
- The Buyer shall comply with all reasonable instructions of the Supplier in relation to the handling, fitting, installation and use of the Product and any software provided by the Supplier.
- The Buyer is responsible for ensuring that the Product is set-up correctly, that such Product retains those settings and that any required updates are made when required. Where the Buyer has a private APN, the Buyer must ensure the Product has white-listed the DNS addresses advised by the Supplier. The Buyer must ensure that it updates white-listed addresses advised to it by the Supplier in a timely manner and within any time frame as is advised by the Supplier.
- The Buyer is responsible for the maintenance of the Product, and for carrying out any testing to ensure the Product operates and communicates with the Monitoring Centre as intended.
- Where the Buyer resupplies (whether by on-selling, leasing or renting) the Product to an end-user, the Buyer must clearly inform end-users in writing that the Product is not to be used in contravention of any limitations set out on the Web Portal or otherwise identified to the Buyer by the Supplier.
7. Training, Manuals and Product Support
- Subject to clause 21, the Supplier will provide the Buyer the services set out in this clause 7 for a minimum of 12 months after the Delivery Date, and thereafter until such services are discontinued by the Supplier, on no less than three months notice to the Buyer. Notice may be given prior to the minimum 12 month period ends, but must not expire before the end of that period.
- The Supplier will provide:
- training materials accessible via the Web Portal; and
- responses to any reasonable questions in relation to the training via email at firstname.lastname@example.org.
- Onsite training can be arranged at a daily rate plus expenses.
- The Supplier will provide manuals and technical support documentation for the Product, including operating instructions, on the Web Portal.
- The Supplier will provide reasonable telephone and email support to the Buyer in connection with the use of the Product during Business Hours.
- The Supplier may from time to time make software or firmware enhancements to the Product (which may be to a base unit and/or an individual device). Enhancements may be applied by the Supplier (via a remote connection) or made available to the Buyer or the user of the Product to apply. Enhancements will be provided at no additional charge, unless the enhancements add significantly more functionality and/or are made at the Buyer’s request. Enhancements that add functionality may be purchased from the Supplier for such additional fee and on such terms as may be agreed between the parties.
- The Supplier may provide the Buyer the opportunity to test Product enhancements before making such enhancements available for installation to all Product deployed by the Buyer. In such event, the Buyer is responsible for testing the Product enhancements purchased by the Buyer or otherwise made available to the Buyer. While the Supplier uses its best efforts to ensure enhancements are error free, the Supplier is not able to test all situations, and so the Supplier’s testing is limited to its local environment. As such, the Supplier will not be liable for any problems with the Product or software or firmware errors that are caused by the installation of the enhancements and which are unique to the Buyer’s environment in which it has deployed the Product (including the communications network accessed by the Product).
- The Buyer must ensure that it installs any enhancement in accordance with instructions provided by the Supplier. The Supplier will not be liable for any problems with the Product or software or firmware errors that arise due to the Buyer’s failure to follow those instructions.
- If the Buyer chooses not to install enhancements that are made available at no additional charge, the Buyer does so at its own risk. The Supplier will not be liable for any problems with the Product or errors that would have been corrected had the enhancement been installed.
- The Buyer acknowledges that remote updates require the Product to be on and connected to a data or cellular network, and that the Supplier relies on third party networks in order for it to deliver the update. The Supplier will not be liable for any failure to perform, or delay in performing, a remote update due to transmission errors or third party network unavailability, or where the Product is not switched on.
8. Warranty and Rework
- Subject to clause 8.10, the Supplier warrants the Product supplied by it to the Buyer:
- shall, on delivery, conform to the Specifications in all material respects, subject to any limitations on use set out on the Web Portal or otherwise identified to the Buyer by the Supplier;
- shall be free of any material defect in the Supplier’s workmanship for a period of 12 months from the date of delivery to the Buyer;
- shall be free of any material defect in materials, for a period of 12 months from the date of delivery to the Buyer, provided that this warranty is limited to defects that the Supplier is able to determine through its current testing methods undertaken by the Supplier when using those materials in the manufacture of the Product;
- is supplied in accordance with any applicable laws, statutory and legal requirements relating to:
- the safety, manufacture, production, transportation, delivery, importation and sale of the Product; and
- the nature, substance, quality, weight and measurement of the Product.
- The Supplier may request that an alleged faulty Product is returned to the Supplier for testing to determine whether such Product does not comply with the warranty in clause 1. If a Product does not comply with the warranty in clause 8.1, the Buyer shall return the faulty Product (Rejected Product) and the Supplier may, at its option, repair or provide a replacement to the Buyer to remedy the defect.
- Any Rejected Product must be returned together with a fault report sheet attached by the Buyer outlining the nature of the defect.
- Upon receipt of the Rejected Product pursuant to this clause 8 the Supplier will endeavour to despatch the repaired or replacement Product within forty five (45) Business Days. Title to the Rejected Product shall revert to the Supplier if a replacement Product is provided. Title to the replacement Product will pass on delivery to the Buyer’s premises.
- The Buyer must pay the transportation charges, and insure the Rejected Product or accept the risk of loss or damage during its transport to the Supplier. The Supplier will pay transportation charges to deliver the repaired or replacement Product to the Buyer. If the Buyer is not in New Zealand, the Supplier will pay any import duties that arise in relation to the return of a Rejected Product to the Supplier. The Buyer is responsible for paying any taxes, duties, levies or imposts imposed on or in relation to the delivery of the repaired or replacement Product to the Buyer by any regulatory or governmental agency of the Buyer’s country.
- The Supplier will bear the risk of loss or damage to any Rejected Product from the time the Rejected Product is delivered to the Supplier’s premises. Risk of loss or damage to any repaired or replacement Product shall remain with the Supplier until the Product is delivered to the Buyer’s premises.
- Instead of repairing or replacing a Rejected Product the Supplier may, at its option, provide a credit to the Buyer for the Price of the Product. Any credit will be applied to the next Purchase Order accepted by the Supplier under a Contract.
- To the extent permitted by law, the repair, replacement or credit in relation to a Rejected Product is the Buyer’s sole remedy for the failure of a Product to comply with the warranty in clause 1.
- In addition to the warranties set out in clause 1 the Supplier represents and warrants to the Buyer that:
- the Supplier has the right to sell the Products to the Buyer free from all encumbrances; and
- the Supplier holds and shall comply with all necessary licences, permits and other approvals required for the manufacture, packaging, supply and storage of the Product.
- The warranty in clause 1 does not cover (and the Supplier has no liability for) damage, fault, failure or malfunction of the Product due to:
- external causes, including, accident, abuse, misuse and problems with electrical power;
- any repairs, servicing or work on the Product which is not carried out by the Supplier or an authorised service agent;
- usage, storage or installation not carried out in accordance with the Supplier’s instructions;
- failure to perform required preventative maintenance;
- normal wear and tear, act of God, fire, flood, war, act of violence or any similar occurrence; or
- problems caused by use of parts and components not provided by the Supplier.
9. Product Recall
- Unless applicable laws take precedence, the Supplier has the sole responsibility to determine the necessity for a recall or field correction of any Product. In the event of a recall by the Supplier or a regulatory or governmental authority the Supplier will consult with the Buyer to develop a plan for the recall which will address the timing and the method and location of return or disposal of such Product (Recall Plan) and the Buyer will:
- co-operate fully with the Supplier and follow all reasonable instructions provided in the Recall Plan; and
- provide written confirmation when the actions agreed in the Recall Plan have been completed in full.
The costs of the recall or field correction will be agreed in writing by the parties, prior to the commencement of the Product Recall or field correction.
10. No Third Party Warranty
- It is the sole responsibility of the Buyer to satisfy itself as to the condition, quality and Specifications of the Product. Except as is required by law, the Supplier will not be responsible to any third party in respect of any warranty provided under these Terms. If the Buyer offers to its customers any warranties or guarantees regarding the Product, then:
- those warranties or guarantees must not be inconsistent with the Specifications and the Buyer must not make any unverified claims in relation to the Product;
- the Buyer will be solely responsible for any claims, actions, proceedings, judgements or demands made under such warranties or guarantees, however arising; and
- the Buyer must not in any way represent that such warranties or guarantees regarding the Product are offered or supported by the Supplier.
11. Exclusion of other Warranties
- Except as expressly provided in these Terms all representations or warranties (statutory, express or implied), except any which may not lawfully be excluded, are excluded. The parties acknowledge that all goods and services being provided by the Supplier under a Contract are:
- being acquired by the Buyer for the purpose of its business, and, accordingly, to the extent permitted by law, the provisions of the Consumer Guarantees Act 1993 shall not apply in relation to the supply of such goods and services; and
- being acquired by the Buyer for the purpose of re-supply, and, accordingly, to the extent permitted by law, any implied guarantees, rights or remedies provided by the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (th) shall not apply in relation to the supply of such goods and services.
12. Non-Warranty Repairs and Servicing
- Repairs and servicing not covered by a warranty under clause 1 may be obtained by the Buyer, on such terms and for such fee as may be agreed between the parties.
- All software and firmware supplied by the Supplier for the intended operation of the Product supplied in connection with these Terms shall be subject to the software licence terms embedded in the software and firmware or otherwise provided by the Supplier with the software and firmware (or the Product), unless provided under a separate licence agreement. If no software licence terms are embedded or otherwise provided the Supplier grants the Buyer and all purchasers and users of the Product a limited licence to use such software and firmware for the intended operation of the Product only. No other rights are granted and, except to the extent that applicable laws (including any applicable copyright legislation) prevent the Supplier from restraining the Buyer from doing so, the Buyer and all purchasers and users of the Product must not sublease, copy, or reproduce the software and firmware nor use the software and firmware for any other purposes.
- The Supplier will ensure that all back up software and source codes are stored off-site.
- To avoid doubt, SmartCare® software is provided by the Supplier to the Buyer under a separate signed licence agreement or on licence terms provided with the software.
14. Liability, Indemnity & Insurance
- To the full extent permitted by law, the Supplier shall not be liable for any direct loss in respect of the Product (including any software), any repairs and servicing of a Product, any services provided by the Supplier, or for any delay or failure to supply the Product or any services, except where it is due to the Supplier’s negligence. Such negligence is defined as arising from failing to perform a duty that a reasonable person would be expected to perform in the circumstances at the time.
- The Buyer acknowledges that:
- it is not always possible with current technology and monitoring systems to immediately identify and report to a monitoring facility or to the end user the failure of hardware, software or infrastructure that the supplied Product uses;
- the Product relies on certain technologies to operate correctly, including but not limited to cellular network/internet connectivity, and the availability of the Global Positioning System (GPS); and
- the Product may not function correctly, or at all, if the individual device is used beyond the range of the base unit, if there is a transmission failure, if it is not used on the cellular network instructed by the Supplier, or if the Product connection to GPS technology (where relevant) is affected by atmospheric conditions, buildings or any other form of interference.
The Buyer agrees to make their customers aware of these limitations, and any other limitations set out in the Web Portal or as advised to it by the Supplier.
- To the full extent permitted by law, under no circumstances will the Supplier be liable for any incidental, indirect, exemplary, special or consequential loss or damage or for any loss of business, profit, revenue, goodwill, opportunity or anticipated saving.
- The Supplier will not be liable for any failure of the Product (including any software) or failure in any services provided by the Supplier, where the failure is due to technologies or circumstances outside of the Supplier’s reasonable control, or if the Product is used in a manner in which it cannot reasonably be expected to operate.
- If the Supplier is held to be liable to the Buyer under any contract the Suppliers total liability is limited to an amount equal to the amount the Buyer has paid to the Supplier under that Contract. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
- The Buyer shall indemnify and keep the Supplier indemnified against all costs, claims, demands, expenses and liabilities, including without prejudice to the generality of the foregoing, claims for death, personal injury, damage to property and consequential loss, which may be made against the Supplier or which the Supplier may sustain or incur in connection with:
- the sale or use of the Product and any software by the Buyer, and/or the sale or use by any third party of the Product and any software provided to the Buyer under a Contract, except to the extent caused by:
- the Product’s failure to comply with clause 1.1 ; or
- the Supplier’s instruction, unlawful actions or negligence;
- the manufacture of the Product to the Buyer’s requirements; and/or
- any third party claim that the logo or any other materials provided by the Buyer to the Supplier to apply to the Products infringes the Intellectual Property Rights of that third party.
- the sale or use of the Product and any software by the Buyer, and/or the sale or use by any third party of the Product and any software provided to the Buyer under a Contract, except to the extent caused by:
- The Supplier will maintain Public and Product Liability Insurance to the value of $20,000,000 to cover property damage and personal injury arising from the use of its products. The Supplier will maintain Professional Indemnity Insurance to the value of $1,000,000 on any one claim and in total to cover property damage or personal injury arising from the use of its products.
- If the Buyer is in breach of these Terms, the Buyer shall pay on demand all costs and expenses (including legal expenses) incurred by the Supplier in taking action in connection with that breach.
15. Force Majeure
- It is agreed by both parties, that where either the Supplier or the Buyer is unable, wholly or partly, by reason of a Force Majeure Event to carry out any obligation, that obligation is suspended so far as it is affected by the Force Majeure Event. Where a Force Majeure Event is relied upon by a party:
- the other party must be given prompt written notice of the Force Majeure Event;
- the party affected by it will use all commercially reasonable diligence to remove the affects of the Force Majeure Event as quickly as possible;
- as soon as the Force Majeure Event ceases, the party affected by it must give written notice to the other.
- If the Force Majeure Event continues for more than sixty (60) Business Days and substantially affects the commercial basis of the Contract:
- the parties agree to consult and negotiate in good faith about what action to take; and
- if the negotiations are unsuccessful, the matter will be dealt with pursuant to clause 22.
16. Intellectual Property
- The Buyer acknowledges and agrees that the Supplier owns:
- all the Intellectual Property Rights in or associated with the Product, the SmartCare® software and associated services, and all other software or firmware supplied by the Supplier for the intended operation of the Product (Supplier’s Intellectual Property Rights);
- any development, improvement, modification, variation or addition to the Supplier’s Intellectual Property Rights.
- To the extent that the Buyer creates any development, improvement, modification, variation or addition to the Supplier’s Intellectual Property Rights, then the Buyer hereby irrevocably assigns all such Intellectual Property Rights in any such development, improvement, modification, variation or addition to the Supplier.
- Nothing in these Terms will transfer to the Buyer any Intellectual Property Rights in the Product or the SmartCare® software and associated services, or any other software or firmware supplied by the Supplier for the intended operation of the Product, other than the right to use the Product in accordance with these Terms.
- Except to the extent that applicable laws (including any applicable Copyright Acts) prevent the Supplier from restraining the Buyer or a third party from doing so, none of the Buyer, its customers or any affiliates shall modify, decompile, disassemble, or reverse engineer any of the Product or software or firmware, or copy any documentation including training materials and user manuals provided by the Supplier. The Buyer must ensure that any person it supplies the Product to agrees to this obligation for the benefit of the Supplier. Notwithstanding this restriction, the Buyer may copy documentation with the prior written consent of the Supplier.
- The Buyer:
- will not in any way challenge, question, dispute or infringe the rights of the Supplier in relation to any of the Supplier’s Intellectual Property Rights;
- will not cause or permit anything which may damage or endanger the Supplier’s Intellectual Property Rights or to assist or allow others to do so;
- will notify the Supplier of any suspected infringement of the Supplier’s Intellectual Property Rights in writing immediately after becoming aware of such suspected infringement and will take such reasonable action as the Supplier shall direct at the expense of the Buyer in relation to such infringement;
- will (but without prejudice to the Supplier’s other rights and remedies) compensate the Supplier for any use of the Supplier’s Intellectual Property Rights by or on behalf of the Buyer in breach of these Terms; and
- will not use the Supplier’s Intellectual Property Rights otherwise than as permitted by these Terms.
- Where the Buyer provides the Supplier with any logos or other materials to include on the Product for the Buyer, the Buyer grants to the Supplier a licence to copy and reproduce such logos and other materials in order to include them on the Product in accordance with the Buyer’s requirements. The Buyer warrants that it has the right to permit the Supplier to do so.
- The Receiving Party must hold and maintain any Confidential Information of the Disclosing Party that it holds in strict confidence.
- Nothing in these Terms transfers any title or other right in the Disclosing Party’s Confidential Information to the Receiving Party, other than the right to use the Confidential Information in accordance with these Terms.
- The Receiving Party will:
- establish and maintain effective security measures (including at a minimum the same measures as the Receiving Party uses to protect its own Confidential Information, which in any event must be not less than reasonable measures) to safeguard the Disclosing Party’s Confidential Information from unauthorised access or use;
- keep the Disclosing Party’s Confidential Information under its power and control;
- immediately notify the Disclosing Party of any suspected or actual unauthorised access, use, copying or disclosure of the Disclosing Party’s Confidential Information; and
- provide all assistance reasonably requested by the Disclosing Party in relation to any proceedings the Disclosing Party may take against any person for unauthorised access, use, copying or disclosure of the Disclosing Party’s Confidential Information where the unauthorised access, use, copying or disclosure is a consequence of the Receiving Party’s act or omission.
- The Receiving Party will:
- only use the Confidential Information of the Disclosing Party in accordance with these Terms and not for any other purpose;
- not (except with the Disclosing Party’s prior written approval or where required to do so by law) disclose (or assist in the disclosure of) the Disclosing Party’s Confidential Information to anyone other than its:
- personnel or related entities who have a need-to-know for the purposes of fulfilling the Receiving Party’s obligations under these Terms or to enable the Receiving Party to exercise its rights under these Terms;
- professional advisors, upon obtaining a similar undertaking of confidentiality from such advisors;
- ensure that its relevant personnel and related entities are made aware of and comply with the confidentiality obligations of the Receiving Party under these Terms, including being bound by a corresponding confidentiality obligation; and
- on discovery of any breach of this clause 4 by the Receiving Party or any person in possession of the Disclosing Party’s Confidential Information through the Receiving Party;
- immediately notify the Disclosing Party of such breach;
- co-operate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of the Disclosing Party’s Confidential Information and prevent its further unauthorised use or disclosure, including following the Disclosing Party’s reasonable directions; and
- take appropriate steps to ensure that the same or any similar breaches do not occur in the future.
- If disclosure is required by law the Receiving Party must notify the Disclosing Party and provide the Disclosing Party with as much notice as is practicable in the circumstances of the requirement for, and proposed form of, such disclosure. The Receiving Party must provide all reasonable assistance required by the Disclosing Party if it chooses to seek to prevent such disclosure being made.
- A party who discloses the other party’s Confidential Information to any other person will be responsible for the acts and omissions of that other person as if they were its own acts and omissions.
- Neither party shall make or permit any public announcement or disclosure of any sort regarding these Terms without the prior written consent of the other party.
- On request by the Disclosing Party, the Receiving Party must promptly:
- return or deliver to the Disclosing Party all of its Confidential Information (including all copies and all notes made by reference to any such Confidential Information);
- delete entirely and permanently all of the Disclosing Party’s Confidential Information from every computer disk or electronic storage facility of any type owned or used by the Receiving Party;
- cease to make use of the Disclosing Party’s Confidential Information or any part of it; and
- confirm in writing to the Disclosing Party that it has complied with all the obligations in clause 8 and (subject to the proviso to this clause) certify in writing that the Receiving Party has no copies of the Disclosing Party’s Confidential Information in its possession, power or control, either in hard copy, electronic format or in any other media, provided that the Receiving Party is not required to comply with clauses 16.8.1 and 16.8.2 in relation to its board reports, board papers or any similar documents provided to its board of directors for the purposes of a board meeting and which refer to or contain the Disclosing Party’s Confidential Information. The obligations of confidentiality in these Terms shall continue to apply to all of the Disclosing Party’s Confidential Information that is retained by the Receiving Party.
- The Buyer agrees that the contact details and associated information of its staff may be collected and used by the Supplier in the course of complying with its obligations, or exercising its rights, under these Terms and any Contract.
- The following applies to such contact details and information:
- The Buyer shall ensure that the relevant staff members have consented to such collection and use, and are aware that the Supplier holds their contact details and information, the purposes for which it may be used and of any rights they have under applicable laws. If the Buyer’s staff do not provide the necessary contact details and information the Supplier may not be able to deal with them in relation to the relevant Contract.
- The Supplier also agrees that the contact details and associated information of its staff may be collected and used by the Buyer in the course of complying with its obligations, or exercising its rights, under these Terms or any Contract. The Buyer must hold such details and information and only use them in accordance with these Terms and any Contract, to maintain the relationship between the parties, or as may otherwise be agreed by the parties or the Buyer and the relevant individual. The Supplier will ensure that its staff members are aware that the Buyer holds their contact details and information.
- Each party will comply with applicable privacy laws in relation to holding and its use of the other party’s staff members’ contact details and information. In addition, each party will promptly advise the other if there is any unauthorised access, use or disclosure of such contact details and information.
- Each party will only hold the other party’s staff members’ contact details and information for as long as it has obligations to the other party, and to the extent required by law, to enable it to respond to any claim that may be brought by the other party, and in backups held in accordance with its security processes.
18. Entire Agreement
These Terms, including any applicable software licence terms and separate licence agreements or any other documents referred to or incorporated by reference, and the terms in any Purchase Order, set forth the entire agreement between Supplier and Buyer and supersedes all prior agreements, undertakings, representations or warranties by or between the Supplier and the Buyer (including their directors, officers, employees and agents) relating to the subject matter hereof. No amendment or variation to these Terms as they apply to a Contract shall be binding unless it is in writing and agreed by the parties. The Supplier may amend or update these Terms for any subsequent Contracts at any time.
No delay or other forbearance by one party to another in respect of any breach of the other party’s obligations under these Terms shall operate as a waiver of or prevent the subsequent enforcement of that obligation, nor be deemed a delay or forbearance in respect of, or a waiver of, any subsequent or other breach.
- Notices may be given to each party at their addresses as set out in a relevant Purchase Order, and shall be deemed to have been received:
- in the case of postal mail or courier, four (4) Business Days after posting (or ten (10) Business Days if posting internationally); and
- in the case of email, two (2) Business Days after date of despatch of an email from the email address specified by the receiving party.
- Notwithstanding the foregoing, any communication received or deemed to be received on a day which is not a Business Day shall be deemed not to have been received until the next Business Day.
21. Partnership or Agency
Nothing in these Terms creates a partnership or agency between any of the parties unless expressly provided.
- The supplier may, without incurring liability, cancel a contract or any services provided in relation to the product if:
- the buyer becomes insolvent, enters into a scheme of arrangement with creditors (other than with the Supplier’s prior consent) or ceases or threatens to cease to carry on all or a material part of its business, or has a receiver or administrator appointed in respect of any or all of its assets or other steps are taken for its dissolution; or
- the Buyer breaches any of these Terms and fails to remedy such breach within five Business Days of receiving written notice of such breach.
- In the event a Contract or any services in relation to a Product are cancelled or discontinued, all charges and other payments outstanding or incurred prior to the date of cancellation will become immediately due and payable, including the Price for any accepted Purchase Orders where the Products have been despatched.
- Cancellation of a Contract or any services in relation to a Product shall not:
- relieve either party from any right, liability or claim that has accrued before the date of cancellation; or
- affect the provisions of these Terms which expressly, or by their nature, survive cancellation.
23. Governing Law and Disputes
- These Terms and the performance of any Contract shall be governed by and construed in accordance with the laws of New Zealand and the parties agree to submit to the exclusive jurisdiction of the New Zealand Courts.
- If any dispute or difference (a dispute) arises between the parties relating to these Terms or a Contract or the construction of them, or the rights, duties or obligations of either party under them then all disputes in connection with these Terms, a Contract or the performance of them shall be settled through good faith negotiations.
- If the parties fail to resolve the dispute within ten (10) Business Days of either party notifying the other party in writing of a dispute, the parties will try to settle the dispute by mediation. Either party can initiate mediation by giving not less than five (5) Business Days written notice (Mediation Notice) to the other party.
- The mediator must be agreed by the parties or, if the parties cannot agree on a mediator within five Business Days after the Mediation Notice has been given, then either party may request the chairperson of Resolution Institute (or his or her nominee) to select the mediator (being a New Zealand mediator), such request to be made within a further five (5) Business Days.
- The mediator will set the timetable (including the date by which the mediation will expire irrespective of whether or not the dispute has been resolved).
- If the dispute has not been resolved within the time frame specified by the mediator, unless the parties otherwise agree, the mediation procedure will terminate and each of the parties will be entitled to pursue arbitration.
- If the dispute cannot be resolved through mediation either party may by notice to the other refer the matter to three arbitrators in New Zealand, one arbitrator to be appointed by each of the parties hereto, and the third arbitrator by the two arbitrators so chosen. In the event that one party fails to appoint an arbitrator within thirty (30) Business Days of being requested to do so, the other party may request the President, for the time being, of the New Zealand Law Society (or the President’s nominee)to appoint an arbitrator on behalf of the defaulting party. The decision of the arbitrators or that of any two of them shall be final. The arbitration shall be conducted in English and pursuant to the UNCITRAL Arbitration Rules.