1. Terms
1.1 These terms of supply, together with the [quotation or estimate accepted by you] (Agreement) and apply in respect of all Products and Services supplied by Times-7 to you.
1.2 You will become bound by this Agreement as soon Times-7 supplies a quotation or estimate to you.
2. Quotations and estimates
2.1 All quotations and estimates provided by Times-7 are provided subject to any changes to the specifications of the Products or Services.
2.2 Quotations and estimates shall only be valid for the period specified in such quotation or estimate, and if no timeframe is specified, 30 days from the date of the relevant quotation or estimate.
2.3 You may not cancel any order for Products following acceptance by you of the relevant quotation or estimate (Accepted Order).
3. Price
3.1 In respect of all Products and Services supplied by Times-7 to you, you will pay to Times-7 the Price applicable to such Products and Services, and any taxes and other applicable amounts referred to in clause 3.2.
3.2 Unless expressly specified otherwise in this Agreement, all Prices are exclusive of freight, insurance, installation, any other costs or expenses, and all applicable taxes (including value add or Products and services tax) tariffs or duties assessed or levied in connection with the supply of the Products and Services to you.
3.3 Any adverse variation in exchange rates, or increases (other than minor or insignificant increases, as determined by Times-7) in current ruling costs of labour, transport, freight, insurance, duty, imposts, cost of materials and all other additional costs and expenses incurred or arising between the date of the relevant quotation or estimate and the date of Delivery shall be to your account and, the Price of the Products and/or Services shall be increased accordingly.
4. Payment
4.1 Payment of the Price for Products shall be made in accordance with the payment terms specified in the relevant Accepted Order.
4.2 Unless specified otherwise in the Accepted Order, payment of the Price for Services (if any) is due in full on the date on which Times-7 completes the relevant Services (as notified to you by Times-7).
4.3 Times-7 may, in its discretion, request you to pay a deposit upon acceptance of a quotation or estimate, confirmation of an order, or at such other time notified by Times-7.
4.4 Interest at a rate of 4% above Times-7 bank’s overdraft rate per month, calculated on a daily basis shall be payable on any moneys outstanding by you to Times-7 from the date payment is due until the date payment is received by Times-7. Such interest shall be payable on demand.
4.5 You shall pay all costs and expenses incurred by Times-7 in the recovery or attempted recovery of outstanding moneys and enforcement of this Agreement .
4.6 Times-7 may suspend performance of its obligations under this Agreement at any time that amounts owing by you are outstanding.
5. Delivery
5.1 Delivery of Products shall occur in accordance with the Incoterm and any other delivery terms specified in the relevant (Delivery). Delivery may be made in instalments, as notified by Times-7.
5.2 If Times-7 is requested to arrange transportation (to the customer’s premises or to any other premises), Times-7 will do so on behalf of the Customer and shall not be liable in any way to the Customer in respect of such transportation (except in the case of gross negligence or wilful misconduct by Times-7 in arranging such transportation).
5.3 Any quotations relating to the time for delivery of Products are estimates only and not commitments. Times-7 will not be bound by, or liable for a failure to comply with, any such quotations. Times-7 may deliver Products in instalments.
5.4 If you do not pickup (or arrange for a third party to pick up) your Products within 30 days of Delivery, Times-7 may charge you, and you shall pay to Times-7 upon demand, reasonable storage costs for your Products until such time as the Products are picked up from Times-7’s premises.
6. Inspection
6.1 As soon as practicable following Delivery of any Products, you must:
(a) check the quantity of Products Delivered against the Accepted Order quantity and inspect the Delivered Products for any damage, defects or failures; and
(b) promptly (and, in any event, within five Business Days of Delivery), notify Times-7 in writing (to sales@times-7.com) of any discrepancies, damage or defects in the relevant Accepted Order. This notice must include, your name, address, purchase order number(s), details of the discrepancies or damage, and photographic evidence.
If notification is not provided by you in accordance with clause 6.1(b) or Times-7 (in good faith and on reasonable grounds) disputes the basis upon which notification has been provided, you will be deemed to have accepted the Delivered Product and shall have no further claims in respect of the relevant Accepted Order, other than the right to make a Product Warranty claim in accordance with clause 11 and the Product Warranty Form.
6.2 In the event that Customer provides notification under clause 6.1(b) and such notification is not disputed by Times-7, your sole remedy:
(a) in respect of any type or volume discrepancy, shall be, at Times-7’s discretion, either the reduction of the Product Price for the Accepted Order to reflect only the Product actually Delivered or the supply by Times-7 of an additional volume of Product to ensure compliance with the Accepted Order;
(b) in respect of any damage or defect in or to any Products, a right to make a claim under the Product Warranty specified in clause 11 and the Product Warranty Form (subject to the terms in the Product Warranty Form), unless the damage occurred during transit (including loading or unloading) in which case clause 6.3 shall apply.
6.3 Despite any other term of this Agreement, Times-7 does not accept any liability or responsibility (under the Product Warranty or otherwise) for any damage caused during transit (including loading and unloading). Any such claim should be lodged by you as an insurance claim with the relevant freight company. As such, upon completion of your inspection under clause 6.1(a), any damage caused during transit should be addressed to the freight company by noting the damages on the Proof of Delivery (i.e. signed as damaged).
7. Risk
7.1 Risk of any loss, damage or deterioration of or to the Products shall be borne by you from the time of Delivery of the Products.
7.2 It is up to you to satisfactorily insure all risks in the Products from the time that risk passes to you in such items.
8. Title
8.1 Property in and ownership of all Products remains with Times-7 until payment has been made in full by you for the relevant Products. Until such time as title has passed to you, you will hold and deal with the Products as a fiduciary agent and bailee for Times-7.
8.2 You must (at your own cost) take all action Times-7 requests (including providing all necessary consents and executing all documents) necessary to enable Times-7 to register (in any jurisdiction in which the Products are stored or you undertake business) any security interest created by or in connection with this Agreement and the Products supplied to you on any relevant register in such jurisdiction.
8.3 You must not do (or omit to do) anything that may jeopardiseTimes-7’s rights as owner of the Products (prior to payment in full for such Products), and shall not either directly or indirectly create or suffer to exist any security interest affecting all or any part of such Products.
9. Services
9.1 Times-7 will perform the Services (if any) for you in accordance with the requirements specified in the Accepted Order or otherwise agreed in writing with you.
10. Your warranties
10.1 You warrant that:
(a) all information provided by you to Times-7 in connection with this Agreement is accurate, complete and up to date, and that the use by Times-7 of such information or materials (in the manner anticipated by this Agreement) will not breach the rights (including the privacy or intellectual property rights) of any person.
(b) You will only use the Products for their intended purpose (for which they were supplied by Times-7).
10.2 Without limiting any other right or remedy available to Times-7 for a breach of warranty by you, to the extent Times-7 incurs any cost or expense as a result of a breach by you of the warranties in clause 10.1, you shall reimburse Times-7 for such costs and expenses upon demand by Times-7.
11. Times-7 warranty
11.1 The Products are warranted against the defects and failures listed in the Product Warranty Form available at https://www.times-7.com/times-7-warranty (Product Warranty Form) for the warranty period (and, if applicable, agreed extension period) specified in the Product Warranty Form (the Product Warranty). The Product Warranty is subject to the warranty terms contained in the Product Warranty Form.
11.2 Except as expressly provided for in the Product Warranty, to the extent permissible at law: any warranties, conditions, representations or guarantees in respect of the Products (whether implied by statute, common law or custom of the trade or otherwise, including implied warranties, guarantees or conditions of merchantability and/or fitness for a particular purpose) are excluded.
11.3 You rely solely on your own judgement as to the nature, quality and condition of the products and their sufficiency for your purposes.
11.4 Any performance values made available to you by Times-7 are calculated based on computer models utilising the best historical information to hand at the date of this Agreement. These should be treated by you as a guide only and are not to be relied upon as an absolute outcome.
12. Intellectual property
12.1 All Intellectual Property rights in the Products and Services (including all sample, design details, specifications, software, technical handbooks, drawings, documents, work and other material produced by or for (or otherwise made available by) Times-7), ), are and shall remain the property of Times-7, except to the extent a design developed solely for you is expressly specified in an Accepted Order as being owned by the Customer.
12.2 You must not attempt to (or enable a third party to attempt to) modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Products or otherwise use (or allow any other person to use) the Products (or any intellectual property rights in them) for any purpose other than as anticipated by this Agreement.
13. Default
13.1 If:
(a) you default in the due payment of any moneys payable to Times-7, or in the due performance of any of your other obligations, whether under this Agreement or otherwise;
(b) you breach any of the warranties in clause 10.1;
(c) you commit any act of bankruptcy, enter into any composition or arrangement with creditors or (in the case of a company) do any act which would render you liable to be wound up or if a resolution is passed or proceedings commenced for the you winding up or if a receiver or liquidator is appointed in respect of all or any of your assets; or
(d) you act in a manner that detrimentally affects (or may detrimentally affect) the reputation of Times-7 or any of its Products.
Times-7 may, without prejudice to any other rights or remedies, at its option:
(e) terminate this Agreement;
(f) require all moneys outstanding to be immediately due and payable and enforce the security interest created under clause 8; and/or
(g) enter upon your (or your customer’s) premises where the Products are situated and take possession of and/or remove such Products.
14. Liability
14.1 Except to the extent liability cannot be limited by law, the total liability of Times-7 for any loss arising from any defect or non-compliance of the Products or any other breach by Times-7 of its obligations under or in connection with this Agreement will not in any circumstances exceed the Price for the Products in respect of which liability arises.
14.2 You will indemnify Times-7 (and its directors, employees, contractors and agents (indemnified parties) against all claims (including third party product liability claims and intellectual property infringement claims), losses, damages, costs and liabilities (losses) sustained or incurred by an indemnified party in relation to any on-sale by you of any Products, use of the Products by you or any of your end customers, unauthorised use or disclosure by you of any Intellectual Property or confidential information of Times-7 (or its licensors), breach of this Agreement (including any warranty you have provided in this Agreement) by you or the negligence or wrongful acts or omissions of you or any of your employees, contractors, end customers or representatives.
14.3 Except in respect of any unauthorised use or disclosure by you of any of Times-7 Intellectual Property or confidential information, neither party shall be liable for any loss of profits, or any consequential, indirect or special damage or damage or injury of any kind suffered by the other party or any of its representatives.
15. Privacy
15.1 Each of you and Times-7 agree to comply with all applicable privacy laws, directives and policies in connection with any processing of personal information that either of us gain access to in connection with this Agreement.
16. General
16.1 To the extent any confidential information is provided (or made available) by one party to the other, the receiving party must keep that information strictly confidential. If disclosure of any Confidential Information is required by law, the party being required to disclose the other’s information shall promptly notify such party in writing and take appropriate action to safeguard the confidentiality of such information including, at the other party’s expense, seeking a protective order from a court of competent jurisdiction.
16.2 Unless otherwise stated in the Accepted Order, you will be solely responsible for obtaining (at your own cost) any permits, licences or approvals that may be necessary or required in connection with the Products or their use.
16.3 The terms of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or to the supply of Products to the Customer, and are excluded to the maximum extent permitted by that convention.
16.4 The parties agree to use their best endeavours to promptly resolve any dispute or difference between them by way of good faith negotiations. Times-7 may, at its option, require you to submit to mediation in New Zealand with the assistance of a qualified mediator.
16.5 Neither party will be liable for any delay or for any failure to fulfil its obligations under this Agreement (except with respect to any payment obligations) if the failure or delay arises directly or indirectly from or as a consequence of any cause or circumstance beyond the reasonable control of that party. If such failure or delay continues for more than 60 days, either party may immediately terminate this Agreement on notice to the other party.
16.6 If any provision of this Agreement is, or becomes unenforceable, illegal or invalid for any reason it will be deemed to be severed from the Agreement without affecting the validity of the remainder of the Agreement.
16.7 The failure of a party to enforce any provision of this Agreement shall not be treated as a waiver of that provision, nor shall it affect a party’s future right to enforce that provision.
16.8 This Agreement will be governed by, and construed in accordance with, the laws of New Zealand and each of us submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of this Agreement.
16.9 This Agreement comprises the entire agreement between Times-7 and you, and all other terms, including any terms proposed (or referenced) in any other document by you, are expressly excluded and shall be of no effect.
17. Definitions
17.1 In these terms:
Customer, you or your means the customer purchasing the Products, as specified in the relevant accepted quotation or estimate.
Delivery has the meaning given to it in clause 5.1.
Intellectual Property means any right (throughout the world) to, and any interest in, any present or future patent, design, trade mark, copyright, know-how, trade secret or any other proprietary right or form of intellectual property (whether protectable by registration or not) in respect of any technology, concept, methodology, development, idea, data, program or other software, specification, formula, drawing, template, manual, program, design, system, process, logo, mark, style or other matter or thing, existing or conceived, used, developed or produced by any person.
Price means the price of the Products and, if applicable, Services notified by Times-7 to you, whether in the form of a quotation, estimate or otherwise, and specified in the Accepted Order.
Products means any Products supplied by Times-7 to you, as detailed in the Accepted Order.
Services means any services to be performed by Times-7 for you (if any) in connection with the Products, as specified in the Accepted Order.
Times-7 means Times-7 Research Limited.
17.2 In the event of any inconsistency between these Terms of Supply and an Accepted Order, unless expressly provided otherwise in the Accepted Order, these Terms of Supply shall prevail.
17.3 A reference to a person includes a corporation, association, firm, company, partnership, individual or government or local body.