Smartrak Terms & Conditions of Trade

1          PARTIES:    This agreement is made between

            SMARTRAK Ltd ("Smartrak"), the 'Buyer'

                        and

            the 'Supplier'

2          TERM OF CONTRACT:

2.1  This Contract starts on the Start Date.

2.2  This Contract ends on the End Date, unless terminated earlier.

3          SUPPLY OF GOODS

Both Parties' Obligations

3.1 Both Parties agree to:

a.act in good faith and demonstrate honesty, integrity, openness, and accountability in their dealings with each other
b.discuss matters affecting this Contract or the supply of the Goods and notify each other immediately of any actual or anticipated issues that could significantly impact on the performance, supply or cost of the Goods
c.comply with all applicable laws, regulations and codes of conduct.

Orders

3.2 If this Contract is for a one-off purchase of Goods, the signing of this Contract by both Parties is the order for the Goods.

3.3 If this Contract is for the ongoing supply of Goods, the Buyer will place purchase orders for the Goods with the Supplier from time to time. Each order must:

a.be in writing

b.be sent by post, fax, email, e-procurement system or other electronic means, and

c.specify the volume, specification and price of Goods ordered

3.4 The Goods are supplied under the terms of this Contract.

Buyer's obligations

3.5 The Buyer must pay the Supplier the Charges for the Goods as long as the Supplier has delivered Goods that meet the requirements of this Contract, and the Supplier has complied with the other terms of this Contract.

Supplier's obligations

3.6 The Supplier must supply goods which meet the Description of Goods in Schedule 1, the requirements of this Contract, and which are supplied in accordance with orders from the Buyer.

3.7 The Supplier must deliver the Goods to the Delivery address stated in Schedule 1, or such other address the Buyer specifies, on time, and for the Charges. It is essential that Goods are delivered on time.

3.8 The Supplier must notify the Buyer immediately in writing if the Supplier becomes aware of any actual or possible delay in delivery of the Goods.

3.9 If a warranty or maintenance obligation (including a warranty from a manufacturer) applies in relation to the Goods or any items incorporated into or supplied with the Goods, the Supplier must ensure that the benefit of the warranty or obligation is passed on to the Buyer.

Goods must satisfy criteria

3.10 The Goods must:

a.be of merchantable quality and free from defects in design, materials or construction

b.be fit for the purposes for which they are intended to be used

c.comply with the Description of Goods stated in Schedule 1

d.comply with any sample of the Goods provided by the Supplier, except if the Buyer has agreed otherwise in writing

e.be new and unused, unless the Buyer has agreed otherwise in writing, and

f.be packaged so as to protect the contents and keep them clean, dry and in a new condition until they are first used, if appropriate.

Supplier warranties

3.11 The Supplier warrants that:

a. the Goods do not breach any law or standard

b.supply of the Goods in accordance with this Contract will not infringe the rights of any person

c.full ownership of the Goods passes to the Buyer and no-one else has any rights in the Goods when ownership is stated to pass in this Contract

d.all Goods supplied to the Buyer comply with all of the criteria stated in clause 3.10

e.any documentation supplied with the Goods is adequate (in terms of both quantity and quality) to enable the Buyer to use and maintain the Goods in the manner intended by the Buyer

f.all information provided by the Supplier to the Buyer is accurate, and

g.the Supplier has told the Buyer about any Conflict of Interest relating to the

supply of Goods or this Contract.

Spare parts

3.12 If stated in Schedule 1 the Supplier must maintain an adequate stock of spare parts and equipment of the Goods, for supply to the Buyer as and when required.

4          ACCEPTANCE AND REJECTION OF GOODS

Inspection and acceptance

4.1 The signing of a delivery note by any of the Buyer's Personnel does not indicate the Buyer's acceptance of the Goods.

4.2 If, following the Buyer's inspection of the Goods, any of the Goods do not meet the requirements of this Contract, then the Buyer may do any of the following at the Buyer's option, but at the Supplier's cost:

a.require the Supplier to repair the Goods

b.require the Supplier to replace the Goods, or

c.reject the Goods.

4.3 The Buyer must give Notice to the Supplier if it decides to exercise any of the options under clause 4.2.

Repair or replacement

4.4 If the Supplier receives a Notice from the Buyer to repair or replace the Goods, the Supplier must promptly repair or replace the Goods in question, so that the Goods (or replacement Goods) comply with the warranties in clause 3.11.

4.5 If the Buyer is not satisfied with the Supplier's progress in repairing or replacing the Goods, the Buyer may either:

a.reject the Goods, in which case clauses 4.6 to 4.7 will apply; or

b.arrange for the Goods to be repaired by someone else, in which case the Supplier will reimburse all costs and expenses incurred by the Buyer in doing so.

Rejection

4.6 If the Supplier receives a Notice from the Buyer rejecting the Goods, it must remove any rejected Goods from the Buyer's premises at its own risk and expense. If the Supplier does not remove the rejected Goods within 15 Business Days of Notice of rejection, the Buyer may return the Goods and recover from the Supplier any cost and expense incurred.

4.7 If the Buyer rejects any Goods the Supplier will do whichever one of the following the Buyer elects, at the Supplier's cost:

a.provide a full refund of the Charges paid for the rejected Goods, within 10 Business Days of the Buyer electing to receive a refund, or

b.Provide a credit for the Charges paid for the rejected Goods, against the Charges payable for other Goods, or

c.promptly replace the rejected Goods with Goods that meet the requirements of this Contract.

No limitation

4.8 The Buyer's rights under clauses 4.2 to 4.7 are in addition to, and do not limit, any other rights or remedies the Buyer may have.

5.         OWNERSHIP AND RISK.

5.1 Ownership of the Goods passes to the Buyer on the date the Buyer has paid the Charges for those Goods

5.2 Risk in the Goods passes to the Buyer on the date those Goods have been delivered

5.3 Ownership and risk in any Goods rejected by the Buyer under clauses 4.6 to 4.7 will pass back to the Supplier as follows:

a.if the Buyer has paid the Charges for those rejected Goods, once the Supplier has provided a refund, credit or replacement in accordance with clause 4.7, and

b.in all other cases, risk will pass back when the Goods are collected from the place to which they were delivered.

5.3 Ownership of any replaced Goods by the Supplier under clauses 4.2 to 4.5 will pass back to the Supplier once the Supplier has delivered the replacement Goods.

6.         CHARGES AND PAYMENTS.

Charges & invoices

6.1 The Charges are the total maximum amount payable by the Buyer to the Supplier for the Goods. Charges include the Cost, and where agreed, Expenses.

6.2 Unless otherwise stated in Schedule 1 the Charges for the Goods include:

a.all costs of shipping, carriage and freight

b.all insurance charges

c.all other costs incurred by the Supplier in delivering the Goods to the Buyer.

Invoices

6.3 The Supplier must provide valid Tax Invoices for the Charges on the dates or at the times stated in Schedule 1.

Payment

6.4 Unless a different time for payment is stated in Schedule 1, the Buyer must pay each valid Tax Invoice by the 20th day of the month after the month the invoice is dated. The Tax Invoice must be received by the Buyer by the 5th Business Day of that month of payment. The Buyer's obligation to pay is subject to clause 6.5.

6.5 If the Buyer disputes an invoice or any part of an invoice that complies with clause 6.3, the Buyer will pay the portion of the invoice that is not in dispute. The Buyer may withhold payment of the disputed portion until the dispute is resolved.

7.     THE CONTRACTUAL RELATIONSHIP.

Permission to transfer rights or obligations

7.1 The Supplier may transfer any of its rights or obligations under this Contract only if it has the Buyer's prior written approval. The Buyer will not unreasonably withhold its approval.

No partnership, agency or employment

7.2 Nothing in this Contract constitutes a legal relationship between the Parties of partnership, joint venture, agency, or employment.

Neither Party can represent the other

7.3 Neither Party has authority to bind or represent the other Party in any way or for any purpose.

8.     CONFLICT OF INTEREST.

Avoiding Conflicts of Interest

8.1 The Supplier warrants that as at the Start Date, it has no Conflict of Interest in providing the Services or entering into this Contract.

8.2 The Supplier must do its best to avoid situations that may lead to a Conflict of Interest arising.

Obligation to tell the Buyer

8.3 The Supplier must tell the Buyer immediately, and in writing, if any Conflict of Interest arises in relation to the Services or this Contract. If a Conflict of Interest does arise the Parties must discuss, agree and record in writing how it will be managed. Each Party must pay their own costs in relation to managing a Conflict of Interest.

9.     RESOLVING DISPUTES.

Steps to resolving disputes

9.1 The Parties agree to use their best endeavours to resolve any dispute or difference that may arise under this Contract. The following process will apply to disputes:

a.A Party will give the other Party Notice of a matter in dispute.

b.The Contract Managers will attempt to resolve the dispute through direct negotiation.

c.If the Contract Managers have not resolved the dispute within 10 Business Days of the date of the dispute notice, they will refer it to the Parties' Senior Managers, or equivalent, for resolution.

d.If the Senior Managers, or equivalent, have not resolved the dispute within 10 Business Days of it being referred to them, the Parties shall refer the dispute to binding arbitration.

9.2 If a dispute is referred to arbitration, the arbitration will be conducted:

a.by an arbitrator agreed by the Parties, or if they cannot agree, appointed by the Chair of LEADR New Zealand Inc (Lawyers Engaged in Alternative Dispute Resolution)

b.at a fee to be agreed by the Parties, or if they cannot agree, at a fee determined by the Chair of LEADR New Zealand Inc.

9.3 Each Party will pay its own costs of arbitration under clause 9.1.

Obligations during a dispute

9.4 If there is a dispute, each Party will continue to perform its obligations under this Contract as far as practicable given the nature of the dispute.

Urgent Relief

9.5 Nothing in this Clause shall preclude either party from taking immediate steps to seek urgent  equitable relief before a New Zealand Court.

10.   TERMINATION.

No fault termination

10.1 The Buyer may terminate this Contract at any time by giving 20 Business Days' Notice to the Supplier

Immediate termination

10.2 The Buyer may terminate this Contract immediately, by giving Notice, if the Supplier:

a.becomes bankrupt or insolvent

b.has an administrator, receiver, liquidator, statutory manager, mortgagee's or chargee's agent appointed

c.becomes subject to any form of external administration

d.ceases for any reason to continue in business or to supply the Goods

e.is unable to supply the Goods for a period of 20 Business Days or more due to an Extraordinary Event

f.is in breach of any of its obligations under this Contract and the breach cannot be remedied

g.repeatedly fails to perform or comply with its obligations under this Contract, whether those obligations are minor or significant

h.does something, or fails to do something, that, in the Buyer's opinion, results in damage to the Buyer's reputation or business,

i.has a Conflict of Interest that in the Buyer's opinion is so material as to impact adversely on the supply of the Goods or the Buyer, or

j.provides information to the Buyer that is misleading or inaccurate in any material respect.

If a breach has not been remedied

10.3 If a Party fails to meet the requirements of this Contract (Defaulting Party) and the other Party (Non-defaulting Party) reasonably believes that the failure can be remedied, the Nondefaulting Party must give a Notice (Default Notice) to the Defaulting Party.

10.4 A Default Notice must state:

a.the nature of the failure

b.what is required to remedy it, and

c.the time and date by which it must be remedied.

10.5 The period allowed to remedy the failure must be reasonable given the nature of the failure.

10.6 If the Defaulting Party does not remedy the failure as required by the Default Notice, the Non-defaulting Party may terminate this Contract immediately by giving a further Notice. 

Supplier's obligations

10.7 On giving or receiving a Notice of termination, the Supplier must:

a.stop supplying the Goods

b.comply with any conditions contained in the Notice, and

c.immediately do everything reasonably possible to reduce its losses, costs, and expenses, arising from the termination of this Contract.

Consequences of termination or expiry of this Contract

10.8 The termination or expiry of this Contract does not affect those rights of each Party which:

a.accrued prior to the time of termination or End Date, or

b.relate to any breach or failure to perform an obligation under this Contract that

c.arose prior to the time of termination or End Date.

10.9 If this Contract is terminated the Buyer will only be liable to pay Charges that were due for Goods supplied before the effective date of termination.

11.   CONFIDENTIAL INFORMATION.

11.1 Both parties agree that, unless they have the prior written consent of the other, they will not use or disclose to any third party (other than for the purpose of performing this Agreement or if disclosure is required in any Court of Law) the terms and conditions of this Agreement or any information confidential to the other party.   

12.   NOTICES.

Delivery of Notices

12.1 All Notices to a Party must be delivered by hand or sent by post, courier, fax or e-mail to that Party's address for Notices stated in Schedule 1.

12.2 Notices must be signed by the appropriate manager or person having authority to do so.

Receipt of Notices

12.3 A Notice will be considered to be received:

a.if it is delivered by hand, on the date it is delivered

b.if it is sent by post within New Zealand, on the 3rd Business Day after the date it was sent

c.if it is sent by post internationally, on the 7th Business Day after the date it was sent

d.if it is sent by courier, on the date it is delivered

e.if it is sent by fax, on the sender receiving a fax machine report that it has been successfully sent, or

f.if it is sent by e-mail, at the time the e-mail enters the recipient's information system.

12.4 A Notice received after 5pm on a Business Day, or on a day that is not a Business Day, will be considered to be received on the next Business Day.

13. FORCE MAJEURE

13.1 Neither party will be liable for any act, omission, or failure to fulfil its obligations under this Agreement if such act, omission or failure arises from any cause reasonably beyond its control including acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental action fire, communication line failures, power failures, earthquakes or other disasters after the date of this Agreement (called "Force Majeure").

13.2 The party unable to fulfil its obligations due to Force Majeure will immediately:

a.Notify the other in writing of the reasons for its failure to fulfil its obligations and the effect of such failure;

b.use all responsible endeavours to avoid or remove the cause and perform its obligations.

14.   SECURITY - PERSONAL PROPERTY SECURITIES ACT 1999 ("PPSA")

9.1   The Buyer acknowledges that the Personal Property Security Act 1999 ("PPSA") applies to the products supplied under this agreement.

9.2   The Buyer grants to Supplier a specific security interest in the goods and the proceeds of the goods and the Buyer securing purchase money for or Supplier's ownership of the goods.  The Buyer will, if Supplier requests, sign any documents (including any new agreements), provide all necessary information and do or allow anything else required by Supplier to ensure that Supplier' security interest is a perfected security interest.

9.3   The Buyer will not enter into any security agreement that permits any other person to register any security interest in respect of the goods or the proceeds.

9.4   The Buyer waives its right under the PPSA to receive a copy of any verification statement or financing change statement.

9.5   The Buyer agrees that where Supplier has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.

9.6   The Supplier will remove the PPSA after the goods have been paid in full.

15. GENERAL

Changes to this Contract

15.1 Any change to this Contract, including an extension of length of time of this Contract, must be in writing and signed by both Parties. A change can be made at any time after this Contract has been signed by both Parties.

This is the entire Contract

15.2 This Contract, including any Variation, records everything agreed between the Parties relating to the supply of the Goods. It replaces any previous communications, negotiations, arrangements or agreements that the Parties had with each other relating to the supply of the Goods before this Contract was signed, whether they were verbal or in writing.

Waiver

15.3 If a Party breaches this Contract, and the other Party does not immediately enforce its rights resulting from the breach:

a.that does not mean that the Party in breach is released or excused from its obligation to perform the obligation at that time or in the future, and

b.that does not prevent the other Party from exercising its rights resulting from the breach at a later time.

New Zealand law, currency and time

15.4 This Contract will be governed and interpreted in accordance with the laws of New Zealand.  All money is in New Zealand dollars. Dates and times are New Zealand time.

Publication of information about this Contract

15.5 The Supplier may disclose the existence of this Contract but must obtain the Buyer's prior written approval before making reference to the Buyer in its publications, public statements, promotional material or promotional activities about this Contract.

15.6 Each Party undertakes not to post on websites, social networking sites or publicly display objectionable or derogatory comments about the Goods, this Contract, each other, or any of their Personnel and to ensure that their Personnel do not do so.