Purchase Order Terms
Ordering
Form: We may place Orders by e-mail, telephone or by fax. Orders in response to a quote from you must be accepted and are treated as being accepted on receipt. You will also acknowledge receipt of each order for practical reasons as soon as practicable. All Orders are governed by these terms. These terms take precedence in the event of any conflict. Neither you nor we are bound by any other terms pre-printed on any Order, Order acknowledgements or in any other communication. We register a continuing objection to your terms and conditions and are not bound by them.
Shipping and Handling: You will use your best endeavours to meet all estimated or confirmed delivery dates. If you miss a delivery date or breach any warranty and we decide to expedite freight to our premises, you will pay all costs of expediting delivery.
Title and Risk: Title and Risk pass in accordance with the Relevant INCOTERMS. Title to Software and Background IP will not pass to us unless otherwise agreed but remains vested in its owner subject to the licences granted in these terms. All deliverables created under a services agreement become our property on creation.
Forecasts: Any forecast information we provide to you is non-binding and we accept no liability if the forecast proves to be inaccurate unless we agree otherwise in writing. We have made no volume commitments.
Access to Records: You must on reasonable notice and in the detail reasonably required by us provide copies of any documents the we reasonably request relating to the Products and Services, including Specifications, progress reports, and documents confirming compliance with the terms of any Order, our policies notified to you and any relevant legislation and standards.
Pricing
Inclusions: The price set out in the Order includes all your costs including the costs of delivery in accordance with the Relevant INCOTERMS (including labelling, packaging, taxes, duties, insurance and handling); any licence or other fees paid to third parties for goods and services used by you to supply Products and Services, and includes all taxes except GST or other value added tax.
Price Guarantee You have agreed to ensure that the Price is your best price to any customer for the same or similar Products and Services and is competitive with any other prices for similar products and services (your "Price Assurance"). We have no obligation to pay any amount in excess of your Price Assurance.
Invoicing and Payment
Invoice Address: Please send invoices by e-mail to accounts@taitcommunications.com. You acknowledge that invoices sent to other addresses will not be processed for payment.
Invoice Details: You may invoice us in accordance with the Relevant INCOTERMS. We will pay invoices complying with this clause 60days EOM by electronic funds transfer to the bank account nominated in writing by you. All payments will be made and all credits given in NZ Dollars unless otherwise agreed in writing. We may withhold from payment that part of any invoice which we dispute until the dispute is resolved.
Withholding Tax: If we are required by law to make a withholding from the Price, we will pay the Price net of the required withholding to you and will not be required to gross up. If an audit identifies that a withholding should have been made from the Price, you must pay this withholding to the relevant authority together with any interest and penalties due. If you change the country of your tax residency you must reimburse us for any resulting costs including withholding tax, interest and any penalties.
Quality and Description
Specifications and Samples: Products and Services must comply strictly with all Specifications, Quality Requirements, and with any samples provided. You must label the Products in accordance with our instructions. You must carry out the Services as set out in the Order.
Outbound Goods Inspection: You must ensure that Products are shipped with a copy of your outbound goods inspection documentation which must identify the results achieved at the QA checkpoints set out in the Specifications (if any).
Branding: Where reasonably practicable all Products including interchangeable modules, Tooling, Software and documentation provided by you must refer to our Marks and product names as set out in the relevant Specifications and your branding will not be used.
Quality Assurance: You must operate an effective system of quality assurance capable of demonstrating that your quality management system is appropriate to achieve the Quality Requirements. We may at our cost and on reasonable notice visit any of your premises for the purpose of audit in order to establish confidence in your processes and quality assurance arrangements.
Packaging: You must ensure that all packaging complies with the Specifications in relation to packaging. In addition, All moisture sensitive and/or ESD sensitive electronic devices and materials must be handled, labelled (including ESD Class) and packaged as per IPC/JEDEC Standard J-STD-033A July 2002 ("Handling, Packing, Shipping and use of Moisture/Reflow Sensitive Surface Mount Devices") and ANSI/ESD S541-2003 ("For the Protection of Electrostatic Discharge Susceptible Items Packaging Materials"). You must ensure that all Products are packed in a tamper-proof manner sufficient for the Product to arrive at the destination in an undamaged condition, and in accordance with any Delivery Guidelines communicated to you. Please ensure that packaging is the minimum necessary to comply with an Order in order to minimise transport costs.
Solderability of Electronic Devices: All Products must meet the requirements of JEDEC standard J-STD-002B, 'Solderability Tests for Component Leads, Terminations, Lugs, Terminals & Wires' February 2003/ or JESD22-B102D ' Solderability Feb 2003
Interfaces: You must provide at no additional charge full details of all interfaces and any modifications to those interfaces (whether open or proprietary) for the purpose of interfacing with the relevant Products.
Key Personnel: If Key Personnel are identified in an Order you must use those people in the agreed roles in delivering the Services unless they are unable to do so by reason of injury or illness. You must obtain our prior written consent before replacing any Key Personnel (which will not be unreasonably withheld provided that you can satisfy us of the replacement person's competence and skill)
Due Diligence: You acknowledge that you have carried out all relevant due diligence and that you have satisfied yourself of your ability to carry out your obligations under an Order and you have not relied on any representation from us that is not set out in an Order.
Records and Inspection: You must maintain records required by prudent business practices and applicable laws while fulfilling the Order and for a reasonable time after the Order is completed and you must (i) keep the records safe; (ii) make sure that the records are easy to access; (iii) make sure that the records clearly identify all relevant time spend and expenses incurred in providing the Services; and (iv) ensure that the records are destroyed in accordance with your obligations in the Order when they are disposed of.
Access to Records: You must on reasonable notice and in the detail and format reasonably required by us provide copies of any records and documents we reasonably request relating to the Order, including progress reports, documents confirming compliance with the terms of an Order, our policies notified to you and any relevant legislation and standards.
Epidemic Failure: If we notify you of an Epidemic Failure you must promptly at your own expense and risk, take such steps as are necessary to remedy the Epidemic Failure. If within 5 Business Days you have not demonstrated to our reasonable satisfaction that you will remedy the Epidemic Failure promptly, you must, if requested by us and at your expense and risk, promptly collect all Products which in our reasonable opinion are affected by the Epidemic Failure from the premises at which the defective products have been collected by us.
Schedule and Project Management
Time of the Essence: Time is of the essence in meeting any and all milestones set out in an Order.
Delay: You must advise us in writing if you anticipate that you will miss any milestone date and you must keep us informed of the cause of the delay or anticipated delay, the steps that you are taking to avoid the delay or to make up time, any options available to us, and the date on which you expect to achieve the relevant milestone or replacement milestone if one is agreed.
Reporting: You must give us regular status reports and must participate in regular status meetings as reasonably requested by us.
Acceptance
Time to Inspect or Test: Payment or signed delivery receipts does not constitute confirmation that the Products and Services have met the required Specifications. Buyer will not be deemed to have accepted any Products and Services until it has had a reasonable time to inspect and test the Products and review and test the deliverables of any Services.
Acceptance: If the Products and Services are subject to Acceptance, we will promptly confirm Acceptance in writing once the Products and Services successfully meet the Acceptance Criteria. If the Products and Services do not meet the Acceptance Criteria you must promptly modify the Products and Services in order to meet the Acceptance Criteria and relevant test may be re-run at our option.
Not Accepted by Milestone Date: If the Products and Services have not met the Acceptance Criteria by the relevant Milestone Date we may at out option but without limiting any other remedies (i) extend the time for performance; (ii) Accept the Products and Services (with a corresponding reduction in the price); (iii) cancel the order and any other affected Order and you must refund any monies paid; or (iv) reject the Products and Services by giving notice ("Rejection Notice").
Rejected Items: You must collect all rejected Items as soon as practicable at your cost and risk. You must indemnify us for any costs necessarily incurred in connection with the storage of rejected items pending collection. Any rejected items which remain uncollected by you for more than 10 Business Days after a Rejection Notice are at your risk and may be disposed of by us at your cost. You must resupply rejected items as soon as practicable. If you have not been able to resupply Products and Services and achieve Acceptance within 20 usiness Days we may cancel the Order.
Disposal: You may not sell, recycle or otherwise dispose of excess, obsolete, scrap, work in progress, raw materials, or finished Products associated with an Order without our consent.
Licences
License to Use: You grant or must procure the grant in relation to any Software a perpetual, irrevocable, world-wide, non-exclusive, transferrable, fully paid-up licence for us to use, make, modify, copy, reproduce, demonstrate, display, create derivative works of, and/or distribute copies of; to assemble, edit, merge, translate, or compile additional copies or distribute embedded and free-standing copies of the, including derivative works; and to support and maintain any Software included in any Deliverable.
Licence to On-sell You also grant a perpetual, irrevocable, worldwide, nonexclusive, fully paid up license, with right of sublicense, to use, make or have made, demonstrate or have demonstrated, market or have marketed, import, offer or have offered for sale, sell or have sold, license or have licensed, and otherwise distribute or have distributed, our products into which the Software has been incorporated; and to provide to our customers the right to use the Software, which right survives the termination of an Order.
Warranties
Authority: Each Party warrants that it has the lawful ability to sign and carry out its obligations under each Order.
Specifications Warranty: You warrant that the Products comply with applicable Specifications, and be fit for the purposes for which they will be applied for a period of 12 months from the later of delivery plus 90 days.
Product Warranty: You warrant that the Products are new (unless otherwise agreed in writing) and of merchantable quality, are fit for the purpose for which they are supplied, are free from defects in design, materials, and workmanship, do not contain harmful code, are clearly marked in accordance with the requirements set out in each Order or the Delivery Guidelines, and that no other person has any claim against the Products (whether by way by ownership or security), and that the Products comply with all relevant regulatory requirements.
Software Warranty: You warrant that any Software provided or included in a Deliverable is free from defects that result in malfunctions, self-destruction mechanisms, illicit code; or any copy protection or licensing scheme that interferes with our ability to exercise our rights under each Order. You also warrant that the Products have no vulnerabilities that allow unauthorized destruction of, access to or control of the Products, other elements of a system that includes the Products; or any information residing on the Products or other elements of a system that includes the Products.
Publicly Available Software: You warrant that you will not, without our written consent, incorporate into the Products and/or any Deliverable or Software any software that contains, or is derived in any manner (in whole or in part) from,(i) any software that is distributed as free software, open source software or similar licensing or distribution models, (ii) any software that requires as a condition of use, modification and/or distribution of such software that such software (a) be disclosed or distributed in source code form, (b) be licensed for the purpose of making derivative works, or (c) be redistributable at no charge ("Publicly Available Software"). You also warrant that any Publicly Available Software (i) is contained solely within specific package/components of the Software, (ii) does not have any portion residing outside of the Software and will not be available, intermingled, or dispersed within or outside the Software at any time or in any way.
Services Warranty: You warrant that Services will be performed by appropriate numbers of skilled and experienced personnel exercising due skill and care; and will be fit for the purpose for which they are applied
General Warranty: You warrant that you have obtained and will maintain all permissions, licences and consents necessary for you to perform the Services, that the use, possession, marketing or on-selling the whole or part of any Deliverable, Service or Product does not and will not infringe the rights (including Intellectual Property Rights) of any third party.
3rd Party Warranties You will in addition to the above warranties extend where possible all warranties you receive from your suppliers to us and our Customers. All warranties run to us, and through us, to our customers. All warranties survive any inspection, acceptance, payment, or resale by us.
Remedies If any Product does not comply with the Specifications Warranty or Product Warranty above we may at our option modify the Products, or require replacement products to be made available at no charge as soon as practicable. You will reimburse us for the costs of handling, including sorting and modifying, Products that do not conform to the warranties set out in this clause. We will at your cost return or destroy the non-compliant Product if requested to do so by you. These remedies are in addition to any other remedies available to us.
Regulatory
Compliance with laws: The parties agree to comply with all applicable laws and regulations. You acknowledge that it is our express policy to comply fully with the laws of the jurisdictions in which we operate.
Compliance with Specified Regulations: You must comply with good industry practice in relation to regulatory compliance. You are responsible to ensure that your products contain all regulatory compliance marks that are required to ship into China, the United States and European Union. We agree that we are responsible for specifying any other compliance marks that are required to ship to other locations.
Import and Export Controls: We agree that we will not export, import or tranship Products or technical information in violation of any applicable export control laws of any country having jurisdiction over the Products or parties to this agreement. If Products are sold in violation of export control laws then you have no obligation to provide warranty service of technical support for those units.
Restriction of Hazardous Substances: Lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls(PBB) and polybrominated diphenyl ethers (PBDE) ( "RoHS materials") or any other materials regulated from time to time under Directive 2011/65/EU ("RoHS") must not form part of any Products supplied to us unless agreed in writing. You warrant that you hold certification for all relevant RoHS regulated Products at all times together with analogous certifications relevant to the export markets we advise you that we export our products to. You must make certification documentation available to us on request.
Waste Electrical and Electronic Equipment: All relevant Products must comply with Directive 2002/96/EC of the European Community ("WEEE") and any analogous regulations in our export markets that are notified to you by us. You warrant that you hold WEEE certification for all relevant Products at all times. You must make certification documentation available to us on request
Country of Origin and Export: You agree to inform us in writing of the country of origin of each Product and to your best endeavours to identify the point of extraction of any raw materials that each Product contains and you agree on our request to provide the export control classifications and information on the applicable export or re-export authorizations and all necessary information relating to the Products for any required export, re-export or import licenses. You agree to advise us of any change of in country of origin status by giving at least six (6) months' prior written notice.
Indemnities
Indemnity: You agree to indemnify, hold harmless and fully defend us and our customers, officers, directors, employees, contractors, and agents ("Indemnified Parties") from and against any and all claims, damages, expenses, suits, losses, or liabilities of any type ("Claims") arising from or related to (i) any death, injury, or property damage caused by the acts or omissions you, your officers, directors, employees, contractors, or agents arising from or connected with the performance of an Order, (ii) your or your contractors', representatives' or agents' acts or omissions under an Order, including without limitation the delivery of Products and Services that are defective, non-conforming, or that otherwise fail to comply with your warranties as set out in an Order; (iii) any actual or claimed infringement or misappropriation of any Intellectual Property Rights; and (iv) any breach of the warranties set out in an Order
Indemnity Process: You will reimburse the Indemnified Parties for all losses, costs, and expenses incurred as a result of any Claims, including legal fees. In the case of a Claim of infringement of Intellectual Property Rights, if the use of any portion of the Products provided is enjoined as a result of any suit, then you will either procure the right for us and our customers to continue using the Products, or replace or modify the Products so that they become non-infringing and are of equivalent or superior functionality as determined by us in our sole discretion. If neither of the foregoing alternatives is available on terms which are acceptable to us, we may return all or any part of the Products for a full refund of the total amounts paid for the affected Products and seek all other remedies available at law.
Trademarks and Corporate Livery
License to use Marks: We grant a non-exclusive, non-transferrable licence to attach our Marks to the Products if that is required in any Order. You must not infringe or attempt to acquire any right in our Marks, and must use our Marks only for the purpose set out in an Order.
Removal of Marks: You will remove any of our Marks prior to dealing with Products and/or Deliverables that are rejected or returned to you.
Issued Property
Issued Property: If any personal property (as defined in the PPSA) is issued by one party ("Party A") to the other Party (Party B) then Party B must ensure that the property is not damaged, is properly maintained and serviced, is used by Party B only for the purposes of fulfilling this agreement or as otherwise agreed in writing, and will be returned to Party A on demand or on termination of this agreement.
PPSA: If any items of our personal property (as defined in the PPSA) (together "Personal Property") are in your possession or the possession of a third party for the purposes performing your obligations under this agreement, you immediately and automatically grant us a security interest in all your rights (as the word "right" is used in the context of the PPSA) in and to each and every part of all present and after-acquired Personal Property and any accessions (as that term is defined in the PPSA) to that Personal Property, all proceeds (however received) from that Personal Property and all of the Supplier's present and future rights in relation to that Personal Property, accessions and proceeds.
Duration of Security Interest: You acknowledge that the security interest will continue until the relevant Personal Property has been delivered to the us, provided that if the delivery address is a remote location, then the security interest will continue indefinitely for as long as the Personal Property remains "personal property" as defined in the PPSA, and you continue to have "rights" in that Personal Property as described above.
Further Assurances : You will promptly sign any documents, provide any further information, or do any other thing that we reasonably require to perfect and maintain the perfection of our security interest (including by registering a financing statement or financing change statement), and you will give us 14 days' prior written notice of any change in the your name, address, contact details, trading name, business practice or any other details, and you will use your best endeavours to ensure that any applicable financing change statement is registered disclosing such new details; and you waive your right to receive a verification statement under section 148 of the PPSA.
Termination and Postponement
Termination by You: You may terminate an Order if we have failed to pay any invoice for 30 days after payment is due and we have further failed to remedy that failure within 30 days of receiving written notice requiring payment.
Termination Without Cause: We may cancel or vary an Order by giving written notice to you at any time. If we cancel an Order we invite you to prepare a report setting out costs incurred by you to date, costs and savings applicable to any proposed termination, and a proposed price (the "Adjusted Price") which is not higher than the original Price, and which does not contain any allowance for expected profit, unperformed work, or consequential loss. The Adjusted Price will become the Price if we agree that the Adjusted Price is reasonable. No amount is payable for cancellation of Orders after an estimated or confirmed delivery date has been missed.
Termination for Cause: We may terminate an Order if you breach any material provision of the Order and (in the case of a breach capable of remedy) fail to remedy the breach within the period specified by us; or if you become subject to an Insolvency Event to a Change in Effective Control.
Consequences of Termination: All property of a Party that is in the control or possession of the other Party that contains the other Party's IPR or Confidential Information must be destroyed or returned at that other party's option, and all other rights and obligations of the Parties under an Order automatically terminate unless accrued prior to termination. Any rights or obligations that expressly or by implication are intended to come into or continue in force on or after termination do so.
Postponement: We may postpone delivery of Products or performance of the Services for up to 90 days without affecting the Price.
Intellectual Property
3rd Party IP: We acknowledge that you and 3rd parties remain the owner of all Background IP in your Products and Services and you acknowledge that we and 3rd parties remain the owner of our Background IP. You grant or must procure the grant of a sufficient non-exclusive, transferrable, fully paid up licence of the relevant Background IP to enable us to exercise the rights in an Order.
Project IP: Project IP will be vested in us on creation unless otherwise agreed in writing and you agree that all materials in whatever form prepared or produced by you under an Order are commissioned by us for the Price. You have also agreed that anyone entitled to assert their moral rights to be associated with the works have waived that right.
Confidentiality
Confidentiality: The Parties undertake to keep all Confidential Information disclosed by the other party strictly confidential, in a safe and secure place using reasonable technical and organisational security measures to prevent unauthorised access, destruction or loss; and to only disclose Confidential Information to its Affiliates, employees, agents, advisers or sub-contractors on a "need to know" basis. The parties may only use the Confidential Information in performing its obligations under an Order and not for its own benefit or the benefit of any third party. Each Party undertakes to the other to make all relevant employees, agents, advisers and sub-contractors aware of the confidential nature of the Confidential Information disclosed by the disclosing Party.
Public Domain: The confidentiality obligations do not apply to information that is or becomes public knowledge other than by breaching the confidentiality obligations, or that come into the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party, or that are received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure, is independently developed without access to any Confidential Information disclosed by the disclosing Party, or where disclosure is required by law.
Assignment and Subcontracting
Assignment and Subcontracting: Neither party may subcontract or assign any Order without the other party's prior written consent provided that we may assign an Order to a member of the Tait Group.
Notices
Notices: All notices in connection with an Order must be made in writing in English addressed to the other party's registered office or last know address and will be duly given: when delivered, if delivered by hand during normal business hours of the recipient; on the fifth Business Day following posting, if posted by pre-paid post with a track and trace feature.
Insurance
Insurance: It is your responsibility to ensure the risks of doing business are adequately addressed, whether by insurance or otherwise. We do not have any specific insurance requirement.
Personal Information
Personal Information: You must ensure that any collection, processing, use, disclosure and transfer by you, your agents, contractors or employees of Personal Information in connection with an Order complies with all applicable laws, rules and regulations.
Obligation to Notify: You must notify us if you become aware that a disclosure of Personal Information may be required by law or a breach of this clause has occurred.
Liability Caps
Liability Cap: The total liability of a Party to the other for all claims made under or in connection with an Order (whether based on contract, tort, or otherwise) is limited to three times the aggregate value of all Orders entered into in the 12 Months preceding the incident giving rise to a claim. Neither Party is liable for any indirect or consequential damages or losses, including loss of profits and loss of data.
Exclusions: This clause does not limit your liability for personal injury or death where not excluded by law, liability under the Intellectual Property indemnity, liability for beach of the confidentiality obligations, a Party's liability to the other Party for fraudulent misrepresentation, and any other liability to the extent that the liability may not be excluded or restricted by law.
Disputes
Resolution by Management: In the event of a dispute concerning the subject matter of an Order the parties will work together seek a resolution. If any dispute referred to a meeting is not resolved at that meeting then either Party, by notice in writing to the other, refer the dispute to relevant senior officers on each side who will co-operate in good faith to resolve the dispute as amicably as possible within 14 days or such longer period as is agreed.
Exclusive Process: No party may commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a dispute without first complying with this clause. This clause does not prevent a party seeking injunctive relief to ensure continued performance or to prevent on-going breaches.
Continued Performance: The parties will continue performing their respective obligations while the dispute is being resolved, unless and until such obligations are terminated or expire or unless the subject matter of the dispute makes it impossible to do so. Each party must use all reasonable endeavours to ensure that where a dispute is reasonably foreseeable, it is dealt with at a sufficiently early stage to ensure that there is minimum effect on the ability of any party to perform its obligations.
Miscellaneous
Governing Law: These terms are governed by the law of New Zealand. Each party submits to the non-exclusive jurisdiction of the New Zealand Courts.
Implied Terms: The parties intend an Order to be given legal effect as if it had been drafted by both parties. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any Order.
No Agency: Neither party is authorised to hold itself out as an agent with the ability to bind the other. These terms and no Order create a partnership or joint venture.
Entire Agreement: Each Order is the entire agreement between the Parties in relation to its subject matter and with the exception of these terms supersedes all other representations and agreements.
No Waiver: The parties may only waive rights or remedies in writing.
Survival: The following clauses survive the expiry or termination of an Order: Pricing, Quality and Description, Licences, Warranties, Regulatory, Indemnities, Trademarks and Corporate Livery, Demo and Other Equipment, Intellectual Property, Insurance, Liability Caps, Disputes, Miscellaneous, Interpretation and Definitions.
Public Announcement: Neither party may without the other party's prior written approval make any announcements or public comment about the existence or subject matter of an Order or any Order.
Further: Assurance Each party must on the request of the other party execute any additional documents and do any other acts or things that are required to give effect the a Order. Without limiting this clause you will assist us to obtain any export or import licenses that may be required anywhere that we may wish to sell our products and services.
No transfer of responsibility: If we audit, inspect or otherwise review any aspect of your performance, you remain responsible for ensuring the Products and Services comply with the Order and we assume no responsibility by reason only of that review.
Our Policies: You agree to comply with all of our reasonable policies that are communicated to you in writing. If you believe that a particular policy would have a material impact on your operations please advise us as soon as practicable. We may invite you to participate in the development of our policies from time to time and welcome your input.
English Language prevails: If an Order or these terms is translated into another language, the English language text prevails in the event ts any inconsistency.
Severability: If any part of these terms is illegal or unenforceable the parties will endeavour to agree replacement provisions that best capture the economic intent of the agreement and it is the parties' intention that the agreement be interpreted in that manner. If that cannot be done then the provisions will be severed from the contract.
Interpretation
Interpretation Rules: In an Order (except where the context requires a different result) the headings are for ease of reference only and do not constitute part of an Order or affect its interpretation, use of the singular includes the plural and vice versa, use of any gender includes the other genders, any reference to a directive, statute, statutory provision or subordinate legislation ("legislation") must be construed as referring to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) that legislation, any phrase introduced by the terms "including", "include", "in particular" or any similar expression must be construed as illustrative and without limitation, the phrase A "and/or" B means A or B and both A and B.
Definitions
"Documentation" means instructional and operating manuals and other printed or electronic materials to supplied by you in connection with an Order.
"Acceptance" means acceptance of Products and Services by us and "Accepted" has a similar meaning.
"Affiliate" means an entity in which Tait Limited has a direct or indirect ownership interest or that we nominate in writing as being an Affiliate provided that we may not nominate a competitor of yours as an Affiliate.
"Background IP" means Intellectual Property Rights that belong to a party or that have been licensed from a third party that are in existence at the date of an Order or that come into existence in a manner unrelated to an Order.
"Business Day" means a day that banks are open for business in Christchurch, New Zealand.
"Change in Effective Control" means a change in the persons having the power either directly or indirectly to appoint a majority of a Party's board of directors.
"Confidential Information" means all financial, business, technical or other data and all other information (whether written, oral or in electronic form or on magnetic or other media) concerning the business and affairs of a Party that the other Party obtains, receives or has access to as a result of the discussions leading up to, or the entering into, or the performance of, an Order;
"Delivery Guidelines" means any guidelines provided to you by us from time to time which set out our requirements relating to the transport and delivery of Products. You may request a variation if the guidelines are changed after a price has been agreed and the change would materially increase your costs.
"Epidemic Failure" means a situation in which in our opinion 2% or more of the Products delivered to us in any consecutive period of 12 months and/or any consecutive 30 day period contain the same defect or originating cause of defect in a single component or sub-assembly of the Products; any Software used in the Products; or a component where that component does not comply with the tolerances set for such components, in each case due to faulty workmanship, design or materials used and/or due to non-compliance with Specifications.
"GST" means the Goods and Services Tax as defined in the Goods and Services Tax Act 1985 (NZ)
"Insolvency Event" means that the Party concerned (being a company) has entered into a compromise with its creditors (within the meaning of the Companies Act 1993 (NZ) or analogous legislation), an administrator is appointed, it has gone into liquidation (otherwise than for the purpose of amalgamation or reconstruction) or an encumbrancer has taken possession of, or a receiver has been appointed to, any of the property or assets of the Party concerned, or that the relevant Party has ceased, or threatened to cease to carry on business, or (being an individual) has been adjudicated bankrupt or all or part of its property vests in the Official Assignee and includes any analogous event in any other Jurisdiction in which a Party operates its business.
"Intellectual Property Rights" includes all patents, copyright, moral rights, registered designs, registered and unregistered trademarks, trade secrets, knowhow and confidential information and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967 and "IPR" has a similar meaning.
"Marks" includes registered or unregistered trademarks, trade names, symbols or decorative designs owned or associated with us and include any analogous IPR.
"Milestone" means the milestones agreed in an Order;
"Moral Rights" means any of the rights described in Article6 of the Berne Convention for Protection of Literary and Artistic Works1886 (as amended and revised from time to time), being "droit moral" or other analogous rights arising under any statute (including the Copyright Act (NZ) or any other applicable law), that exist or that may come to exist, anywhere in the world.
"Order" means the agreement between the parties consisting of the purchase order, these standard terms and any documents referenced in any of those documents.
"Parties" means the parties to an Order.
"Party" means a party to an Order.
"PPSA" means the Personal Property Securities Act 1999 (NZ).
"Price" means the Price set out in the Price Book or the Order.
"Products" means the items that we are purchasing and includes without limitation hardware, software, including any deliverables described in an Order and includes any raw materials and consumables used in providing Products and Services and priced in a Price Book.
"Quality Requirements" means the agree quality assurance requirements to which all of the Products must strictly conform.
"Relevant INCOTERMS" means the INCOTERMS stated in the Order and if not so stated means INCOTERMS 2010 DDP to the address nominated by us in the Order
"Services" means any services (including development services, Installation services, Integration services, the services of consultant programmers, training, testing services, maintenance, support or hosting services, disaster recovery or other services) set out in an Order.
"Software" means: (i) software or firmware embedded in products; (ii) free-standing software, provided by you in either object code or source code, that works with, or runs on, products; and (iii) documentation relating to the software or firmware provided by you and includes new releases, patches and enhancements.
"Specification" means in descending order of priority (i) the agreed specifications set out in or referenced in an Order, or as otherwise agreed in writing; or (ii) relevant industry standards; and (iii) your published specifications as the case may be and includes all relevant documents, drawings and designs.
"Tait Group" means Tait Limited and any entity in which Tait Limited has a direct or indirect ownership interest.
"Tax Invoice" has the meaning given to that term in the Goods and Services Tax Act 1985 (NZ).
"Us", "our" and "we" mean Tait Limited and where the context permits includes its Affiliates, employees, agents and assigns.
"You", means the person named in the Order and where the context permits includes your agents, employees and permitted assigns.