IDENTIMARK STANDARD TERMS OF TRADE
New Zealand and Australia
By placing a valid order with us (Novare Global Limited, NZ company no. 4965079, ABN 36 477 982 585), you (the person or entity transacting with us) agree to be bound by these terms of trade. Please read these terms of trade carefully.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Agreement, the following terms will have the following meanings:
Agreement means these Identimark Standard Terms of Trade, and any accepted Quotation.
Business Day means a day, excluding Saturdays, Sundays, and statutory public holidays in Blenheim New Zealand, or any day in the period starting on 24 December and finishing on 5 January.
Confidential Information means all information of any kind, whether or not in tangible form, and whether or not marked or identified as confidential, that relates to our business affairs and includes information relating to our business operations, business strategies, marketing plans, products and technologies.
Customer Specifications means all information and specifications that you directly or indirectly supply to us, or would be reasonably expected to supply to us, in connection with our supply of the Goods and Services.
Goods means the Goods specified in the relevant Quotation, or as otherwise agreed.
Intellectual Property Rights means all industrial and intellectual property rights whether conferred by statute, at common law or in equity, including, but not limited to, all copyright and similar rights that may subsist in works or other subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, rights in relation to designs (whether registrable), rights in relation to registered and unregistered trade marks, business names; and rights in relation to domain names.
Price means the price for the Goods and/or Services specified in the accepted Quotation.
Quotation means the quotation we provide to you for the provision of Goods and Services.
Services means the Services specified in the relevant Quotation, or as otherwise agreed.
1.2 Interpretation: In this Agreement:
(a) references to the singular include the plural and vice versa;
(b) references to a party include that party’s successors, executors, administrators and permitted assignees (as the case may be);
(c) where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(d) “Includes” or “including” do not imply limitation.
2. FORMATION OF CONTRACT
2.1 Issuance of Quotation: Upon your request, we will issue you a Quotation for the provision of Goods and Services.2.2 Formation of contract: A binding agreement will be formed when you:
(a) sign and return the Quotation to us; or
(b) confirm acceptance of the Quotation in writing (including via email); or
(c) submit a purchase order through our web portal (currently JAX) and we send you an order confirmation; or
(d) submit a purchase order, and we accept the purchase order in writing.
2.3 Expiry of Quotations: Quotations are valid from 30 days from the date of the Quotation.
2.4 Withdrawal of Quotations: We may withdraw any Quotation at any time prior to your acceptance, by notifying you in writing.
2.5 Cancellation of Quotation: To the extent permitted by law, you cannot cancel this Agreement once you have accepted the Quotation, and you are bound to pay the quoted price.
2.6 Your terms do not apply: This Agreement is the only agreement that applies to your transaction with us. Any other terms and conditions you supply, including those stated in your order forms, delivery receipts, purchase orders, online system or elsewhere, do not apply.
3. AGREEMENT TO SUPPLY
3.1 Supply: We agree to supply the Goods and Services as set out in each Quotation on the terms and conditions of this Agreement.
3.2 Subcontractors: We may at our discretion appoint sub-contractors to procure some or all of the Goods and Services.
3.3 Installation and other services:
(a) We may offer to provide you with Services from time to time, including, artwork design services, site safety audits, and product installation.
(b) Installation is complete when the Goods operate successfully under our then-current standard test procedure.
(c) If the cost of any Services are not included in your Quotation, then you agree to pay us for the Services at our then-current rates.
4. TERM
4.1 Term: This Agreement commences on the date when a binding contract is formed under clause 2.2, and will end when you have paid for all applicable Goods and Services in full and cleared funds.
5. CUSTOMER SPECIFICATIONS
5.1 Acknowledgment: You acknowledge that we manufacture the Goods and provide the Services based on the Customer Specifications that you provide us.
5.2 Accuracy: You are fully responsible for ensuring that the Customer Specifications are complete, unambiguous, and are free from error, including spelling, grammar, or design errors. To the extent permitted by law, you agree that we have no liability for Goods or Services provided to you in accordance with the Customer Specifications, even if you later determine that such specifications are substandard.
5.3 Provision of information: You agree to provide us with all Customer Specifications and with all other information we reasonably request for the purposes of providing you with Goods and Services and authorise us to use this information for the purposes of supplying the Goods and Services.
5.4 Your warranties: You warrant that:
(a) you have the right to use the Customer Specifications; and
(b) the Customer Specifications do not contain any content that is, or is likely to be, unlawful, defamatory, threatening, abusive, vulgar, obscene, or distressing to any third party.
5.5 Third party warranties: You warrant that the Customer Specifications, and our use of the Customer Specifications in connection with the Goods and Services:
(a) will not infringe the Intellectual Property Rights of any third party; and
(b) will not infringe any other rights belonging to any third party.
5.6 Our rights to refuse service: We may refuse to take any action with respect to any Customer Specifications that we consider do not comply with this Agreement.
5.7 Variations to Customer Specifications:
(a) We may vary the Customer Specifications upon notice to you, if we have reasonable grounds for believing that the alteration will result in Goods or Services that are substantially similar to those that would have resulted from the original Customer Specification.
(b) You will have 5 days from receiving our notice to raise any objections to the change in Customer Specifications. If you do not notify us within this timeframe, you shall be deemed to have accepted the change in specifications notified to you.
6. STORAGE AND DELIVERY
6.1 Delivery: Unless agreed otherwise, we will arrange the delivery of the Goods to you to the address that you supply us in writing.
6.2 Timeframes: Any quoted delivery times that we supply to you are estimates only. We are not liable for any delay in delivery.
6.3 Freight terms: Where we agree to arrange transit or freight, we do so as your agent, and you agree that we are not liable to you for any issues arising from such freight or transit, including loss or damage to the Goods.
6.4 Insurance: We forward the Goods to you uninsured. You are responsible for insuring the Goods from the time of dispatch from our nominated facility.
6.5 Storage:
(a) Where you notify us in writing that you are not ready for the Goods to be delivered to you on the quoted delivery date, we will store the Goods for up to 30 days at no cost to you.
(b) In all other cases, we will store the Goods at our then-current storage fee, and you agree to pay such fees to us upon our demand.
(c) We are not responsible for any damage, loss, theft, or deterioration to the Goods while they are in storage. Regardless of any other clause to the contrary, you are responsible for insuring the Goods while they are in our storage.
6.6 Abandoned Goods: We may issue a “notice to collect” in relation to any Goods that have not taken steps to arrange for collection. This notice will provide you with a seven day timeframe to arrange for collection of the Goods.
6.7 Notice of Disposal: If you fail to arrange for collection of the Goods within the seven day timeframe, we may issue a further “notice of disposal”. This notice will provide you with one further month to arrange for collection of the Goods. If you fail to arrange for collection of the Goods within the additional one month timeframe, then:
(a) All or your right, title and interests in the uncollected Goods passes to us;
(b) We may sell, dispose of, or otherwise deal with the uncollected Goods as we see fit;
(c) Any payments you have made to us are forfeited to us;
(d) You forever release us from any claims, actions, suits, or proceedings arising in relation to the uncollected Goods; and
(e) We may charge you for any expenses we incur which are incidental to any sale or other disposal of the uncollected Goods.
7. TITLE AND RISK
7.1 Title: We retain title in the Goods until you:
(a) have paid for the Goods in full; and
(b) have paid all other sums due to us by you on any account whatsoever.
7.2 Risk: Risk in the Goods will pass to you once they are dispatched from our nominated facility.
8. PRICE
8.1 Price: The price for the Goods and Services is specified in the applicable Quotation.
8.2 Taxes and freight: In addition to the quoted price, you shall pay for all shipping, handling, and insurance charges, and all taxes (including goods and services tax), duties, excise, imports and any other levies upon demand, unless otherwise stated in the Quotation.
8.3 Expenses: in addition to the quoted price, you will reimburse us for all reasonable disbursements, materials, and other expenses incurred by us in performing the Services and supplying the Goods, including all travel, accommodation and out-of-pocket expenses.
8.4 Credit cards: In addition to the quoted price, you shall pay us for any fee we reasonably impose, or that we pass through, for accepting payments by credit card.
8.5 Clerical errors: We may unilaterally correct any typographical or clerical errors contained in the Prices listed in the Quotation.
8.6 Changes to Quotations: We may unilaterally increase the prices specified in your accepted Quotation to account for any changes to taxes, duties, or other government-imposed costs on us or our suppliers.
8.7 Changes to specifications: We prepare Quotations based on the specifications you provide us. You will pay us at our then-current rates for any additional costs associated with any variation or alteration to these specifications.
9. INVOICING
9.1 Date for payment:
(a) We will issue you an invoice for the relevant price on a monthly basis, or as otherwise agreed.
(b) We will invoice you for any expenses and disbursements payable by you under this Agreement, following the date such expenses and disbursements have been incurred.
(c) You will, unless otherwise agreed in writing, pay all invoices on or prior to the payment date specified on the relevant invoice.
9.2 Advance payments: We may require you to pay us in advance for one or more orders. We may also impose a credit limit on you at any time for future orders.
9.3 Further payment terms: All sums due to us under this Agreement:
(a) will, unless otherwise agreed in writing, be paid in the currency specified in your invoice to the credit of a bank account to be designated in writing by us;
(b) will be paid without deduction or set-off of any kind, and without deduction of income tax or other taxes, charges or duties that may be imposed; and
(c) will be paid by the due date, failing which:
(i) we may charge interest on any outstanding amount on a daily basis at an annual rate equivalent to the standard commercial overdraft interest rate charged by our bankers plus 3%, from the due date until the date of actual payment; and
(ii) if we incur any costs or expenses by reason of your failure to pay any amount required to be paid by you to us by the due date, you will reimburse us for all costs and expenses that we incur in connection with any actions or proceedings for recovery of such amounts, including all reasonable accounting costs, attorney costs (on a solicitor and own client basis), court costs and debt collection costs.
9.4 Set-off: We are entitled to set-off against any amount we owe you, and any amount you owe us.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Ownership of the Intellectual Property Rights in the Goods: You acknowledge and agree that:
(a) You retain ownership of all Intellectual Property Rights in the Customer Specifications;
(b) All other Intellectual Property Rights in or relating to the Goods, and the process of manufacturing the Goods, including as improved under this Agreement, are exclusively owned by us;
(c) If requested by us, you will promptly take all steps necessary, including signing of documents, to ensure that such Intellectual Property Rights vest in us.
10.2 Our licence to you: We grant you a non-exclusive, non-sublicensable, non-transferable licence to use (but not copy) the Goods for your internal business purposes.
11. CONFIDENTIAL INFORMATION
11.1 Confidentiality obligations: You will maintain as secret and confidential, at all times, the Confidential Information and may not use the Confidential Information other than in accordance with this Agreement.
11.2 Exceptions: The provisions of this clause 11 will not apply to Confidential Information that:
(a) Was, before your receipt of it from us, in your possession;
(b) Is or becomes generally available to the public through no fault of yours;
(c) Is required to be disclosed by law.
12. RETURNS
12.1 Your responsibilities: If you identify a suspected material defect in workmanship with your Goods, you must:
(a) notify us of this suspected defect within 14 days of it being identified (defect notification timeframe);
(b) if requested by us, allow us to inspect the Goods; and
(c) if requested by us, return the Goods to us in as close a condition to that in which they were delivered as possible, or provide other evidence of the condition of the Goods, including photographs.
12.2 Our responsibilities: Once we have inspected the Goods, we will, within a reasonable timeframe, determine whether the Goods have suffered from a material defect in workmanship and notify you of our determination.
If we determine that the Goods suffer from a material defect in workmanship, then we may choose to, at our discretion, either:
(a) Replace the Goods; or
(b) Provide you with a refund; or
(c) Take no further action, taking into account the overall circumstances of the situation including (without limitation) the duration you used the Goods prior to the relevant defect being identified, and any of the circumstances listed in clause 13.4.
12.3 Timeframes: We will have no liability to you under clause 12.2 where you fail to notify us of the suspected defect within the defect notification timeframe.
13. WARRANTY
13.1 Product warranty: From time to time, we may offer you a written warranty in respect of particular Goods. If we do this, we will provide you with a written copy of the relevant warranty.
13.2 No guarantee: Due to variations in proof preparations and substrates, we do not guarantee that production prints will exactly match any colour proofs.
13.3 No implied warranties: You acknowledge that, except as expressly provided in this Agreement, we give no warranty in relation to the Goods or Services or other subject matter of this Agreement, express or implied, including any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result. You acknowledge that:
(a) you do not enter into this Agreement in reliance on any representation, warranty, term or condition except as expressly provided for in this Agreement;
(b) to the extent permitted by law, any conditions, warranties, or other terms implied by statute or common law are excluded from this Agreement.
13.4 Warranty exclusions: To the extent permitted by law, no warranty that we give you under or in connection with this Agreement will apply in circumstances where:
(a) you have used the Goods in a way that does not comply with any instructions we provide you;
(b) you have made modifications or alterations to the Goods in a manner not contemplated by us;
(c) the Goods have been physically damaged by you or any third party other than us;
(d) the Goods are subject to any negligent act or omission or you, or third parties under your control.
14. INDEMNITY AND LIABILITY
14.1 Indemnity: You will at all times indemnify and hold us, our officers, servants and agents harmless from and against any and all liability, losses, damages, costs and expenses (the Claim) made or brought against, or suffered or incurred by, us, whether direct or consequential (including, but without limitation, any economic loss or other loss of profits, business opportunity, data or goodwill), arising out of or resulting from:
(a) the use of the Goods by you; and
(b) the infringement (or alleged infringement) of any rights (including any Intellectual Property Rights) of any other person in relation to our use of the Customer Specifications.
14.2 Exceptions: You will not be liable under the indemnity in clause 14.1 to the extent the relevant Claim was caused or contributed by our breach of this Agreement, unlawful conduct, or negligence. We will use reasonable endeavours to mitigate the amounts payable by you under the indemnity.
14.3 Liability: We will not be liable, whether in contract, tort (including negligence) or otherwise, to you for:
(a) loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
(b) loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,
arising directly or indirectly out of this Agreement, even if we have been advised of the possibility of such damages, and even if such loss, damage, cost or expense was reasonably foreseeable by us.
14.4 Liability: Our maximum liability to you arising out of any and all claims under this Agreement, or relating to the Goods and Services, will not in any circumstances exceed the Price payable by you to us and actually paid in relation to the Goods and Services that are the subject of the claims.
14.5 Exception: None of the exclusions or limitations set out in this Agreement will have the effect of limiting or excluding any form of liability where such liability cannot be so limited or excluded under any applicable consumer protection or trading laws, which may include (without limitation) the New Zealand Consumer Guarantees Act and the Australian Consumer Law contained in Volume 4, Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth).
15. PERSONAL PROPERTY SECURITIES ACT 1999
15.1 This clause 15 applies to any Goods located in New Zealand.
15.2 This Agreement constitutes a security interest in the Goods and/or Services for the purposes of the Personal Properties Securities Act 1999 (NZ PPSA) as security for payment by you for all amounts due under this Agreement, including any future amounts.
15.3 You agree to promptly execute and deliver to us all assignments, transfers, and other agreements and documents and do anything else which we may deem appropriate to perfect our security interest in the Goods, or obtain the priority required by us or register (and renew registration of) a financing statement for a security interest in favour of us in the Goods.
15.4 To the extent that Part 9 of the NZ PPSA applies, you agree that the provisions of sections 114(1)(a), 117(1)(c), 120, 122, 133 and 134 of the NZ PPSA which are for your benefit, or place any obligations on us in your favour, shall not apply; and where we have rights in addition to those in Part 9 of the NZ PPSA, those rights shall continue to apply.
15.5 To the extent that Part 9 of the NZ PPSA applies, without limiting anything in the previous paragraph, you hereby waive your rights under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131and 132 of the PPSA.
15.6 You hereby waive your rights to receive a copy of a verification statement under section 148 of the NZ PPSA in respect of any financing statement or financing change statement registered by us.
16. PERSONAL PROPERTY SECURITIES ACT 2009
16.1 This clause 16 applies to any Goods located in Australia.
16.2 This Agreement constitutes a security interest in the Goods and/or Services for the purposes of the Personal Properties Securities Act 2009 (Cth) (AU PPSA) as security for payment by you for all amounts due under this Agreement, including any future amounts.
16.3 You agree to promptly execute and deliver to us all assignments, transfers, and other agreements and documents and do anything else which we may deem appropriate to perfect our security interest in the Goods, or obtain the priority required by us or register (and renew registration of) a financing statement for a security interest in favour of us in the Goods.
16.4 For the purposes of section 20(1)(iii) of the AU PPSA, the description of the Goods the subject of the security interest created under this security agreement includes their description in this Agreement, including any relevant Quotation and purchase order.
16.5 To the extent permitted by law, you agree that the provisions of sections 95, 96, 118, 121(4), 125, 129, 130, 132(3)(d), 132(4), 135, 142, and 143 of the AU PPSA which are for your benefit, or place any obligations on us in your favour, shall not apply.
16.6 You will not cause, either directly or indirectly, the registration of a financing change statement in respect of the Goods without first obtaining our prior written consent.
16.7 You hereby waive your rights to receive a copy of a verification statement, financing statement, or financing change statement.
17. GENERAL
17.1 New Zealand consumer and contract laws: You agree and warrant to us that:
(a) All Goods and Services you acquire under this Agreement are required for the purposes of business in terms of sections 2 and 43(2) of the New Zealand Consumer Guarantees Act 1993, and accordingly the provisions of that Act do not apply to the supply of Goods or Services under this Agreement;
(b) Sections 9, 12A, and 13 of the New Zealand Fair Trading Act 1986 will not apply;
(c) The provisions of Part 3 of the Contract and Commercial Law Act 217 will not apply.
17.2 Force majeure: We will not be liable to you for any breach or failure to perform any of its obligations under this Agreement where such breach or failure is caused by anything beyond our reasonable control, including war, civil commotion, hostility, act of terrorism, strike, lockout, other industrial act, weather phenomena or other act of God, governmental regulation or direction.
17.3 Variations:
(a) We may unilaterally amend these terms at any time. Subject to clause (b) below, the amended terms will take effect on the next transaction following that date on which we notify you of such amendment. If you do not wish to be bound by the amended terms, you may choose not to enter into any further transactions with us.
(b) We may update our prices in accordance with clause 8 at any time, and these updated prices will take effect from the time that we notify you.
17.4 Assignment: You must not sell, assign, transfer, novate, charge, pledge or otherwise encumber this Agreement, or any of your rights or obligations under this Agreement, without first obtaining our written consent. We will not unreasonably or arbitrarily withhold or delay such consent.
17.5 Waiver: No failure or delay by either party to exercise any right or remedy under this Agreement will be treated as a waiver of such right or remedy. No single or partial exercise of any right or remedy will prevent the further exercise of such right or remedy.
17.6 Entire agreement: This Agreement contains the whole of the contract and understanding between the parties relating to the matters covered by it. This Agreement supersedes all prior representations, agreements, statements and understandings between the parties relating to those matters, whether verbal or in writing.
17.7 Governing law: New Zealand law governs the formation, validity, construction and performance of this Agreement. This Agreement is subject to the non-exclusive jurisdiction of the New Zealand courts, and the parties submit to that jurisdiction.
17.8 Further action: Each party agrees to execute, acknowledge and deliver all instruments, make all applications and do all things, as may be necessary or appropriate to carry out the purposes and intent of this Agreement.
17.9 Notices: Any notice given under this Agreement must be in writing and delivered by post, registered mail, courier, or email, addressed to the last address for service as notified by the other party.
No notice will be effective until received. A notice is, however, deemed to be received:
(a) in the case of posting, on the fifth Business Day following the date of posting;
(b) in the case of personal delivery, when received; and
(c) in the case of an email, at the time the email reaches the communications system of the recipient, as long as the sender has not received any unsent/error message,
but any notice personally delivered or received by email either after 5.00 pm on a Business Day, or on any day that is not a Business Day, will be deemed to have been received the next Business Day.
17.10 Survival: Clauses 5.4, 5.5, 6.5, 6.6, 6.7, 7, 9, 10, 11, 12, 14, and 17 survive termination, along with any other clauses that by their nature are intended to survive termination.
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