Terms and Conditions

  1. SECTION B: GENERAL TERMS INTERPRETATION
  1. Definitions:  In the Agreement, the following terms have the stated meaning:  

Term

Meaning

Agreement

Section A (Agreement and Key Details, including the signature clauses and appendix) and Section B (General Terms) as updated from time to time.

Assets

Means the Assets set out in the Key Details.

Charges

means the charges set out in the Key Details for Products, Assets and Services, as updated by HSNZ from time to time in accordance with clause 5.4

Confidential Information

the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement.  HSNZ’s Confidential Information includes Intellectual Property owned by HSNZ (or its licensors).

Customer

Means the party identified in the Key Details.

Customer Support

assisting the Customer with installing, customising and using the Assets and after sales support.

Delivery

the delivery of the Assets to a common carrier or other person nominated by the Customer.

End Date

the end date set out in the Key Details.

Force Majeure

an event that is beyond the reasonable control of a party, excluding:

  • an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
  • a lack of funds for any reason.

Intellectual Property Rights

includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  Intellectual Property has a consistent meaning and includes any enhancement, modification, or derivative work of the Intellectual Property.

Key Details

the Agreement specific details set out in Section A of the Agreement.

Order

a written request by the Customer to HSNZ to provide the Products, Assets and Services.

Payment Terms

the payment terms set out in the Key Details (if any).

Products

the products set out in the Key Details (if any).

Sales Tax

goods and services tax, value added tax, sales tax or equivalent tax payable under any applicable law.

Start Date

the start date set out in the Key Details.

Year

a 12-month period from the Start Date or the anniversary of that date.

  1. Interpretation:  In the Agreement:
  1. clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
  2. words in the singular include the plural and vice versa;
  3. a reference to:
  1. a party to the Agreement includes that party’s permitted assigns;
  2. personnel includes officers, employees, contractors and agents, but a reference to HSNZ’s personnel does not include the Customer;
  3. a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
  4. including and similar words do not imply any limit;
  5. $ and dollars is a reference to the currency listed in the Key Details; and
  6. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;
  1. no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party; and
  2. if there is any conflict between Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A.
  1. OBLIGATIONS
  1. General: In addition to the other obligations of the Agreement, HSNZ must:
  1. Provide the Products, Assets and Services:
  1. promptly, efficiently, and exercising reasonable care, skill and diligence; and
  2. in accordance with:
  • the Agreement, including any Requirement;
  • best currently accepted principles and practices applicable to the Products and Services; and
  • all applicable laws and professional codes of conduct or practice.  
  1. ensure the Products are fit for the purpose (if any) as advised by the Customer in advance and in writing.
  1. Changes to the Assets and Services:  
  1. HSNZ may:
  1. change the specifications of the Products at any time by notice in writing to the Customer; and
  2. add or remove a Product from the scope of the Agreement at any time by notice in writing to the Customer.  On receipt of that notice, the definition of Products in the Agreement is deemed to be amended in accordance with the notice.
  1. A change to the specifications of a Product or the removal of a Product under clause 2.2a will not apply to any Order accepted by HSNZ before HSNZ’s notice.
  1. ORDERS 
  1. Placing Orders:  The Customer must place an Order with HSNZ setting out each type of Product that it wishes to purchase, the requested delivery date and any other information reasonably required by HSNZ.
  2. Accepting Orders:  HSNZ has the right to accept or reject each Order on reasonable grounds.  An Order is not binding unless it is accepted by HSNZ.  If HSNZ does not accept or reject an Order within 7 days of receipt, HSNZ is deemed to have rejected that Order.
  3. Rejected Orders:  If HSNZ rejects an Order, it must provide the Customer with its reasons for doing so unless the Order is deemed to have been rejected under clause 3.2.  HSNZ may, when rejecting an Order, propose an alternative delivery date that would be acceptable to HSNZ.  In such cases, the Customer may submit an amended Order that reflects that proposed delivery date.  The process in clause 3.2 will apply to any such amended Order.
  4. Effect:  Subject to clause 4.1b, once HSNZ accepts an Order, it becomes a binding contract for HSNZ to provide the Products, Assets and Services in accordance with the Agreement and the relevant Order, and for the Customer to pay the Charges for those Products, Assets and Services.
  5. Change of Orders:  Any proposed change to an Order must be provided to HSNZ in writing and HSNZ may (at HSNZ’s option) accept or reject the change.  HSNZ’s acceptance of a proposed change may be subject to conditions (e.g. the Customer agreeing to a change in the Charges for the Products, Assets and Services the subject of that Order).
  6. Cancellation of Orders:  Orders placed and accepted cannot be cancelled without the written consent of both parties. The Customer must notify HSNZ of the Customer’s reasons for cancellation to provide HSNZ the opportunity remedy the Customer’s issue with the Products and/or Services.
  1. DELIVERY, RISK AND TITLE
  1. Delivery:  
  1. All Assets will be delivered by a common carrier or other person nominated by HSNZ to the Customer.  HSNZ is responsible for arranging and paying all costs of transport and insurance.
  2. HSNZ will use reasonable endeavours to Deliver the Assets on or before the delivery date requested in the Order, but will not be liable for any loss, liability or damage resulting from any delay, nor will the Customer be relieved of any obligation to accept or pay for the Assets by reason of that delay.  
  3. HSNZ shall provide the Products and Services to the Customer following the Customer’s receipt of the Assets.
  1. Risk:  Risk of loss in an Asset passes to the Customer when the Asset is Delivered.  
  2. Title:  Title in an Asset passes to the Customer when full payment for the Asset is received by the Customer.
  1. CHARGES
  1. Charges:  The Customer must pay HSNZ the Charges.  
  2. Invoicing and payment: 
  1. HSNZ will provide the Customer with valid Sales Tax invoices for Assets and the Assets, Products and Services separately on the Invoice Dates set out in the Key Details.
  2. The Charges exclude Sales Tax on taxable supplies. If any such sales taxes are applicable, they are payable by the Customer under the Agreement.
  3. The Customer must pay the Charges:
  1. on the dates set out in the Payment Terms, or if there are none, by the 30th of the month following the date of invoice (or the 28th day of February); and
  2. electronically in cleared funds without any set off or deduction.
  1. Overdue amounts:  HSNZ may:
  1. charge interest on any overdue amount.  Interest will be calculated from the due date to the date of payment (both inclusive) at the OCR of New Zealand plus 4% per annum; and
  2. recover all costs incurred in recovering overdue amounts and interest from the Customer, including the actual fees charged by its lawyers and any debt collection agency.
  1. Adjustment:  HSNZ may vary the Charge for a Product, Asset or Service by giving the Customer at least 30 days’ written notice.  Charges updated under this clause are deemed to be the Charges listed in the Key Details from the date set out in the relevant notice.  A change to the Charge for a Product, Asset or Service under this clause will not apply to any Order accepted by HSNZ before the date HSNZ’s notice takes effect.  
  1. INTELLECTUAL PROPERTY
  1. Products:  HSNZ (and its licensors) owns all Intellectual Property Rights in the Products.  The Customer must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
  2. Restrictions:  The Customer must not:
  1. alter, remove or otherwise interfere with any copyright or other proprietary marking on the Products; or
  2. except to the extent permitted by law, reverse-engineer, decompile, disassemble, or modify the Products.
  1. Customer indemnity:  The Customer indemnifies HSNZ from and against any claim, proceeding, damage, loss, liability, cost and expense (including legal costs on a solicitor and own client basis) suffered or incurred by HSNZ resulting from an infringement of HSNZ’s Intellectual Property Rights by the Customer.
  1. CONFIDENTIALITY
  1. Security:  Each party must, unless it has the prior written consent of the other party:
  1. keep confidential at all times the Confidential Information of the other party;
  2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
  3. disclose Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that the personnel or professional advisor is aware of, and complies with, clauses 10.1a and 10.1b.  
  1. Permitted disclosure: The obligation of confidentiality in clause 10.1 does not apply to any disclosure or use of Confidential Information:
  1. for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
  2. required by law (including under the rules of any stock exchange);
  3. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
  4. which was rightfully received from a third party without restriction and without breach of any obligation of confidentiality; or
  5. by HSNZ if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that HSNZ enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.
  1. LIABILITY
  1. Maximum liability:  The maximum aggregate liability of HSNZ to the Customer under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise:
  1. relating to any Product, Asset or Service, it must not exceed an amount equal to the Charge paid by the Customer for that Product, Asset and Service; and
  2. must not in any Year exceed an amount equal to the total Charges payable to HSNZ under the Agreement in the previous Year.
  1. Unrecoverable loss:  Neither party is liable to the other under or in connection with the Agreement for any:
  1. loss of profit, revenue, savings, business, data and/or goodwill; or
  2. consequential, indirect, incidental or special damage or loss of any kind.
  1. No liability for other’s failure:  Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent the failure is directly caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
  2. Mitigation:  Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
  1. TERM AND TERMINATION
  1. Duration:  Unless terminated under this clause 9, the Agreement:
  1. starts on the Start Date and ends on the End Date; and
  2. continues for successive Renewed Terms on expiry of the Initial Term unless a party gives at least 30 days’ notice in writing that the Agreement will terminate on the expiry of the then-current term.
  1. No fault termination:  HSNZ may terminate the Agreement on at least 3 months’ prior notice to the Customer.
  2. Other Termination rights:  
  1. Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
  1. breaches any material provision of the Agreement and the breach is not:  
  • remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or
  • capable of being remedied;
  1. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
  2. is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
  1. Consequences of termination or expiry:  
  1. Termination or expiry of the Agreement does not affect either party’s rights and obligations accrued before that termination or expiry.
  2. On termination or expiry of the Agreement the Customer must pay all amounts owing to HSNZ under the Agreement up to the date of termination or expiry;
  3. Within 3 days of that termination or expiry, the Customer must provide to HSNZ or destroy (at HSNZ option) all Confidential Information and/or Intellectual Property in the Customer’s control, including documents, data, software, works in progress and other materials relating to the Products.
  1. Obligations continuing:  Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 6, 7, 8, 10 and 11 continue in force.  
  1. DISPUTES  
  1. Good faith negotiations:  Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
  2. Obligations continue:  Each party must, to the extent practicable, continue to perform its obligations under the Agreement even if there is a dispute.
  3. Right to seek relief:  This clause 10 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
  1. GENERAL
  1. Force Majeure:  Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
  1. promptly notifies the other party and provides full information about the Force Majeure;
  2. uses best efforts to overcome the Force Majeure; and
  3. continues to perform its obligations to the extent practicable.
  1. Rights of third parties:  No person other than HSNZ and the Customer has any right to a benefit under, or to enforce, the Agreement.  
  2. Waiver:  To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
  3. Notices:  A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Key Details or otherwise notified by the other party for this purpose.  If the notice is given under clause 11.4, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.  
  4. Severability:  
  1. If any provision of the Agreement is, or becomes illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
  2. If modification under clause 11.5a is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
  1. Variation:  Subject to clause 2.2 and 5.4, any variation to the Agreement must be in writing and signed by both parties.
  2. Entire Agreement:  This Agreement sets out everything agreed by the parties relating to the Assets, Products and Services, the relationship between the parties, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date.  The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.  Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the New Zealand Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 11.7.
  3. No assignment:  
  1. The Customer may not assign, novate, subcontract or transfer any right or obligation under the Agreement, without the prior written consent of HSNZ.  The Customer remains liable for the performance of its obligations under the Agreement despite any approved assignment, subcontracting, or transfer.  Any assignment, novation, subcontracting or transfer must be in writing.
  2. A change of control of the Customer is deemed to be an assignment for which HSNZ’s prior written consent is required under clause 11.8a.  In this clause, change of control means any transfer of shares or other arrangement affecting the Customer or any member of its group which results in a change in the effective control of the Customer.  
  1. Law:  The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand.  Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement.
  2. Counterparts:  The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement.  A party may enter the Agreement by signing and emailing a counterpart copy to the other party.