Terms & Conditions

• TERMS AND AGREEMENTS
  • These Terms apply to all Proposals or Quotes and all Goods and Services supplied by us to you, unless there is a separate written agreement signed by both parties which excludes these Terms.
  • If you place an order with us for Goods or Services described in a Proposal or Quote, and we accept your order (either by sending an order confirmation or by Delivering the Goods or providing the Services to you), a separate agreement between us and you for the supply of those Goods or Services on the terms set out in the Proposal or Quote and these Terms (Agreement) is formed.
  • These Terms and the Agreement apply to the exclusion of any standard or other terms you may have for the purchase of goods or services, including any terms you may have included in your order or any other documentation you issue to us.
• INTERPRETATION

In these Terms:

Business Days:  a day that is not a Saturday or Sunday or a public holiday in Auckland.

Business Hours:  8.30am to 5pm on Business Days.

Confidential Information:  the terms and conditions of the Agreement and any information that is not public knowledge and which is obtained from the other party in the course of, or in connection with, the Agreement.  Intellectual Property owned by us is our Confidential information.

Delivery:  delivery of the Goods, or making the Goods available for collection by you or your carrier, as set out in the relevant Proposal or Quote.  Other grammatical forms of the term Delivery have a consistent meaning.

Expenses:  expenses approved in advance by you, that approval not to be unreasonably withheld.

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.

Goods:  the goods ordered by you, as further described in the relevant Proposal or Quote.

including and similar words do not imply any limit.

Intellectual Property Rights:  includes copyright and all rights conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trade marks 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.

a party includes that party’s permitted assigns.

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.

Personnel:  all personnel employed or engaged by a party including subcontractors and agents.

Price:  the price for Goods and/or Services set out in the Proposal or Quote.

Proposal or Quote:  a proposal, quote or similar document issued by us for Goods and/or Services that references these Terms or to which these Terms are attached.

Requirements:  any specifications agreed between us in writing in relation to the Goods or Services.

Services:  the services to be provided by us, as set out in the relevant Proposal or Quote.

Terms: these terms titled Vada Digital Terms of Trade.

We, us or our:  means Vada Digital Limited, NZ company number 5719673.

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

You or your:  means the customer named in the Proposal or Quote.  

Words in the singular include the plural and vice versa.

• SUPPLY OF GOODS AND SERVICES
  • Supply: We agree to supply, and you agree to pay for, the Goods and Services on the terms of the Agreement.
  • Delay: While we will use reasonable efforts to supply the Goods and Services on or before the date (if any) set out in our Proposal or Quote or otherwise advised by us to you:
    • we will not be liable for any loss, liability or damage resulting from any delay; and
    • you will not be relieved of any obligation to accept or pay for the Goods or Services by reason of any delay.
  • DELIVERY, RISK AND TITLE
    • Delivery: We will Deliver the Goods to you to your nominated address.  Freight will be charged to you as set out in the relevant Proposal or Quote.
    • Title: Title to Goods passes to you on the later of:
      • Delivery; and
      • receipt by us of payment in full for the Goods.
    • Risk: Risk in the Goods passes to you on Delivery.
    • Failure to collect: Where you fail to accept Delivery or collect (or arrange collection of) the Goods (as applicable) within 14 days of Delivery, you must, in addition to any other remedies we may have under the Agreement or at law, indemnify us against all loss, damage, liability, and costs (including costs of storage), suffered or incurred (or reasonably charged) by us as a direct or indirect result of that failure.
  • SERVICES
    • General: In addition to the other obligations of the Agreement:
      • we must provide the Services:
        • in accordance with the Agreement, including all applicable laws;
        • exercising reasonable care, skill and diligence; and
        • using suitably skilled, experienced and qualified staff or subcontractors; and
      • you must promptly make decisions (including approvals) and provide us with all information reasonably required to provide the Services.
    • Exclusions from the Services: Except as agreed otherwise in writing between us, the Services (and the Prices) do not include:
      • Services or Goods not set out in the Proposal or Quote;
      • any support services related to the Services or Goods. Separate support service contracts are available on request;
      • any work that you require to be carried out by us outside Business Hours, which will be charged at our current hourly rates and based on our standard minimum charges and time block calculations, for out of Business Hours services;
      • integrating Goods with existing and/or legacy systems;
      • providing source code (or escrow) for any software or device; or
      • documentation or training of your Personnel.
    • YOUR OBLIGATIONS

You must:

• if applicable, notify us in writing of any relevant hazards at your premises, and keep us updated of any new hazards;
• act in accordance with any reasonable directions from us, including maintaining a proper operating environment for any Goods; and
• provide us with all assistance, facilities, services, equipment, Personnel and information reasonably required by us to provide the Goods and Services.

• PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
  • PPSA: We agree that the supply of any Goods under the Agreement creates a security interest over those Goods, and all of our present and future rights in relation to the Goods and any proceeds, in favour of us that may be registered on the personal property securities register under the Personal Properties Securities Act 1999 (PPSA).
  • Further acts: You must provide all information and do all things including the execution of documents as we may require for the purpose of ensuring that we have a perfected first ranking security interest in the Goods and any proceeds under the PPSA.
  • Repossession: If you are in breach of the Agreement (including failing to pay any payment when due), we may, in addition to any other remedies we may have under the Agreement or at law, enter into any premises of yours at any reasonable time to repossess any Goods over which we have a security interest.
• WARRANTIES
  • Goods:
    • We warrant that at the time that title passes to you:
      • we have the right to sell the Goods; and
      • the Goods are sold free from any third party charge or encumbrance.
    • Except as set out in clause 1a, we do not provide any warranties in relation to the Goods. We will use reasonable endeavours to pass on to you the benefit of any warranties provided by the third party suppliers or manufacturers of the Goods.  This is your sole remedy against us in relation to any defect in the relevant Goods.  Many third party supplier or manufacturer warranties may be void if you interfere with the Goods.  Please refer to the relevant third party supplier or manufacturer warranty for further information.
  • Services:
    • We warrant that the Services will, at the time they are provided, conform in all material respects to the requirements set out in the Proposal or Quote or otherwise agreed between us in writing.
    • If the Services do not meet the warranty set out in clause 2a, we must, at your request and at our cost, reperform the Services so that they meet or satisfy that warranty or refund the amounts paid by you for the relevant Services or an appropriate amount that reflects the value of the relevant Services that do not meet the warranty (as applicable). Our obligation under this clause 8.2b is your sole remedy against us for breach of warranty.
  • Exclusions:
    • To the maximum extent permitted by law, our warranties are limited to those stated in clauses 8.1a and 8.2a. Any other condition or warranty (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) is excluded.
    • You agree and represent that you are acquiring the Goods and Services for the purposes of a business and that the Consumer Guarantees Act 1993 does not apply to the supply of the Goods and/or Services or the Agreement.
  • PRICE AND PAYMENT
    • Price and Expenses: You must pay:
      • the Price; and
      • Expenses reasonably incurred by us in the supply of the Goods and/or Services.
    • Invoicing and payment:
      • We will provide you with valid GST invoices for the amounts payable under clause 9.1.
      • Unless agreed otherwise, the Prices exclude GST, which you must pay on taxable supplies under the Agreement.
      • You must pay our invoices:
        • by the 20^th of the month following the date of invoice; and
        • electronically in cleared funds without any set off or deduction.
      • Overdue amounts: We may charge interest on overdue amounts.  Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or if our primary trading bank ceases to quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
      • Invoice disputes: You may withhold payment of an invoice or part of an invoice that you dispute in good faith.  You must notify us of the dispute within 14 days of receipt of the invoice.  You must pay the undisputed portion of the disputed invoice by the due date set out in 2ci.  Any disputed invoice under this clause 9.4 must be dealt with in accordance with the process set out in clause 15.
      • Debt collection costs: You must indemnify us against any costs or damages (including our legal costs) incurred in recovering any monies due by you and such amounts will be monies due for the purposes of this Agreement.
      • Adjustment to Prices: By giving notice, we may increase the Prices, provided that the new Prices will only apply to Goods and Services ordered by you after receipt of the notice.

• INTELLECTUAL PROPERTY
  • Retained Intellectual Property Rights: The following Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) remains the property of the current owner, regardless of its use in the course of providing the Goods or Services:
    • Intellectual Property that existed prior to the Agreement; and
    • Intellectual Property that was developed independently of the Agreement.
  • Goods and Services: You acknowledge that we (and our licensors or third party suppliers) own all Intellectual Property Rights in the Goods, the Services and any documentation provided by us in relation to the Goods or Services.  You must not contest or dispute that ownership or the validity of those Intellectual Property Rights.
  • New Intellectual Property: Unless otherwise agreed between us in writing, as between us, from the date it is created, we solely own all new Intellectual Property created by us in the course of providing the Goods or Services or otherwise in connection with the Agreement.
  • Right to use: On our receipt of your payment in full for the relevant Goods and Services, we grant you an irrevocable, perpetual and non-transferrable licence to use the Intellectual Property Rights subsisting in the Goods and Services to the extent necessary to enable you to use the Goods and Services for your lawful internal business purposes in the manner contemplated under the Agreement.
• CONFIDENTIALITY
  • Security: Each party agrees that, unless it has the prior written consent of the other party, it will:
    • keep confidential at all times the Confidential Information of the other party; and
    • ensure that any Personnel or professional advisor to whom a party discloses other party’s Confidential Information are aware of, and comply with, the provisions of this clause 11.1.
  • Disclosure required: The obligations of confidentiality in clause 11.1 do not apply to any disclosure or use of Confidential Information:
    • for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
    • to the extent required by law (including under the rules of any stock exchange);
    • which is publicly available through no fault of the recipient of the Confidential Information or its Personnel;
    • which was rightfully received from a third party without restriction or without breach of the Agreement; or
    • by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 11.
  • Return of information: Except to the extent that a party has ongoing rights to use Confidential Information, a party must, at the request of the other party following the expiry or termination of the Agreement, promptly return to the other party or destroy all Confidential Information of the other party in the recipient party’s possession or control.
• DATA
  • Data: You acknowledge that some Services may require us and our Personnel to access data, content, and/or information (including personal information) that is transmitted or stored using, or inputted into, the Goods and Services (Data).
  • Approvals: You must arrange all consents and approvals that are necessary for us to access the Data as described.
  • Personal information: You acknowledge and agree that to the extent any Data contains personal information, in collecting, holding and processing that information in the course of providing the Goods and Services, we are acting as your agent for the purposes of any laws governing the handling of personal information.
  • Back-ups: Unless expressly agreed otherwise in writing, we are not responsible for making any back-ups of Data.
• LIABILITY
  • Maximum liability: Our maximum aggregate liability, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will not exceed:
    • in relation to any Goods or Services, the Price paid for the Goods or Services; and
    • under or in connection with the Agreement, the total amount paid by you under the Agreement.
  • Unrecoverable loss: Neither party is liable to the other under or in connection with the Agreement for any:
    • loss of profit, data, savings, business, revenue, and/or goodwill; or
    • indirect, consequential or incidental loss or damage.
  • Unlimited liability:
    • Clauses 13.1 and 13.2 do not apply to limit our liability for:
      • personal injury or death;
      • fraud or wilful misconduct; or
      • breach of clause 11.
    • Clause 13.2 does not apply to limit your liability:
      • to pay the Price and Expenses;
      • under the indemnity in clause 4.4; or
      • for those matters stated in clause 13.3ai - iii.
    • No liability for the 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 that such failure is directly attributable to the other party failing to comply with its obligations under the Agreement, or to the negligence or misconduct of the other party or its Personnel.
    • 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.
  • TERMINATION AND SUSPENSION
    • Termination rights: Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
      • 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;
      • has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason; or
      • is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
    • Consequences of expiry or termination:
      • Expiry or termination of the Agreement does not affect each party’s rights and obligations accrued before the termination or expiry date.
      • You must pay for Goods ordered and Services provided before the expiry or termination date.
    • Obligations continuing: Clauses which, by their nature are intended to survive expiry or termination, including clauses 4, 7, 9.3, 10, 11, 12, 14.2, 14.3 and 15, continue in force.
    • Remedies for non-payment: Where you have failed to pay any amount due under the Agreement, we may, in addition to any other remedies we have under the Agreement or at law:
      • refuse to Deliver any Goods; and/or
      • suspend the supply of any Goods and/or Services.
    • DISPUTES
      • Good faith negotiations: Before taking any court action, a party must use its best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
      • Mediation: If a dispute is unable to be resolved under clause 15.1 within 20 Business Days or such longer period as the parties agree, either party may refer the dispute to mediation by notice to the other party, in which case:
        • The mediation will be subject to the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. (AMINZ).
        • The mediation will be conducted in Auckland, New Zealand by an independent mediator and at a fee agreed to by each party.
        • The cost of the mediator will be borne in equal proportions by the parties.
        • If the parties cannot agree on the mediator and/or the mediator’s fee within 5 Business Days of the referral of the dispute to mediation, the mediator will be selected, and/or the mediator’s fee will be determined, by the President of AMINZ.
      • Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
      • Right to seek relief: This clause 15 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
    • GENERAL PROVISIONS
      • 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.
      • Rights of third parties: No person other than us and you have a right to a benefit under, or to enforce, the Agreement.
      • Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
      • Independent contractor: We are an independent contractor of you.  No other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
      • Notices: A notice, consent, request or other communication under or for the purpose of the Agreement (Notice) must be in writing and sent by email to the email address of the recipient party as that party may from time to time notify to the other party.  A Notice will be treated as having been received at the time shown in the delivery confirmation report generated by the sender’s email system unless such is after 5:00pm on a Business Day, in which case the Notice is taken to be received at 9:00am on the next Business Day.
      • Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.
      • Variation: Subject to clause 9.5, any variation to the Agreement must be in writing and signed by both parties.
      • Entire Agreement: The Agreement sets out everything agreed by the parties relating to the supply of the Goods or Services and supersedes and cancels anything discussed, exchanged or agreed prior to the Agreement’s start.  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 Agreement’s start.  Without limiting the previous sentence, the parties agree that sections 9, 12A, and 13 of the Fair Trading Act 1986 do not apply.
      • Subcontracting and assignment: You may not assign, subcontract or transfer any right or obligation under the Agreement without our prior written consent (that consent not to be unreasonably withheld).  You remain liable for your obligations under the Agreement despite any approved assignment, subcontracting, or transfer.  Any assignment, novation, subcontracting or transfer must be in writing.

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