FlexR TERMS OF SALE
1. APPLICATION AND AGREEMENT
1.1 These terms of sale (Terms of Sale) shall apply in respect of all Goods and/or Services that you (Customer) may purchase from FlexR Limited (FL) from time to time, unless FL otherwise expressly agree in writing. The Customer agrees to purchase, and FL agree to supply, the Goods and/or Services, on the terms and conditions set out in these Terms of Sale. These Terms of Sale do not apply to any Goods and/or Services that FlexR advertise or sell as agent for any third party vendor.
2. DEFINITIONS
2.1 Defined terms: The following terms shall have the following meanings:
FlexR means the cloud-based software platform licensed by FL.
Goods means any goods supplied, or agreed to be supplied, by FL (other than where FL are selling as an agent on behalf of any third party vendor) via FlexR from time to time.
Order means an order for goods and/or services placed by the Customer through FlexR that have been accepted by FL pursuant to clause 3.2.
Price means the price payable by the Customer to FL for the Goods and Services. The Price shall be calculated in accordance with FL’s standard price list as at the time the relevant Order is accepted by FL.
Services means any services sold, or agreed to be sold, by FL (other than where FL are selling as an agent on behalf of any third party vendor) via FlexR from time to time.
Working Day has the meaning set out in the Companies Act 1993, applicable for the Nelson region.
Website means the website available at www.flexr.co.nz.
2.2 Conflicts: If these Terms of Sale conflict with any other agreement between the Customer and FL, then the other agreement shall prevail to the extent of any conflict.
3. ORDERS AND SUPPLY
3.1 Placing Orders: The Customer may place an Order to purchase Goods and/or Services via FlexR. Orders are irrevocable, non-cancellable, and non-variable, unless otherwise agreed in writing by FlexR.
3.2 Acceptance: The Client acknowledges that FL’s acceptance of an Order (in whole or in part) is subject at times to FL’s sole discretion.
3.3 Supply: FL will use reasonable endeavours to source all Goods and/or Services set out in an accepted Order but does not guarantee supply. Should FL be unable to source Goods and/or Services set out in an accepted Order within a reasonable time, FL may cancel all or part of the Order by providing notice in writing to the Customer.
3.4 Delivery: If requested by the Customer, or included in an Order, FL will, at the Customer’s cost, arrange delivery of Goods to the Customer’s nominated delivery location. Any timeframe provided for delivery or collection is an estimate only, and shall not be binding on FL.
4. PRICE AND PAYMENT
4.1 Invoice: FL will invoice the Customer for the Price, on receipt of an Order. FL may consolidate any amounts payable by the Customer to FL under these Terms of Sale with any other amounts payable by the Customer to FL under any other agreement (for example but without limitation under a Master Client Subscription Agreement), in a single invoice.
4.2 Payment: Unless otherwise agreed, each invoiced amount is payable by the Customer on the 20th day of the month following the month in which at the time the Customer places an Order with FL, or such other .
4.3 Method: Payments shall be made in cleared funds, without deduction or setoff. Electronic payments shall be made to FL’s nominated bank account, and include the applicable reference number in the currency specified in the invoice.
4.4 Direct debit authority: Where the Customer has completed, signed and returned a direct debit authority to FL, FL may action direct debits for any amounts owed to FL in accordance with the that authority. Direct debit authorities are subject to the terms and conditions available at www.flexr.co.nz/direct-debit-terms.
4.5 GST: All amounts payable by the Customer, including without limitation the Price, are exclusive of, and plus, GST.
5. FAILURE TO COMPLY
5.1 If the Customer fails to pay any amounts owing by the due date, or is otherwise in breach of these Terms of Sale, FL may, in its sole discretion, without prejudice to any other rights and remedies, do any one or more of the following:
(a) suspend provision of the Goods and/or Services, cancel any Order, terminate (in whole or in part) the supply of Goods and/or Services, or terminate these Terms of Sale, by providing written notice to the Customer;
(b) charge interest at a rate of 12% per annum, calculated on a daily basis from the due date for payment until FL receives payment in full;
(c) enforce any security held; and
(d) take legal action to recover the amounts owing including interest, appoint a collections agent, or other third party to collect the amounts owing, and all costs and expenses associated with such (including legal costs as between solicitor and client), shall be paid by the Customer in addition to the amount owing.
6. RISK AND OWNERSHIP
6.1 Risk: Risk in the Goods will transfer to the Customer on their collection, or where FL agree to deliver the Goods to the Customer, when the Goods are collected by the freight provider for delivery to the Customer’s nominated delivery location. The Customer shall insure the Goods from the point that risk transfers to the Customer.
6.2 Title: Title in the Goods shall not transfer to the Customer until the Price has been received by FL in full.
7. PERSONAL PROPERTY SECURITIES ACT 1999
7.1 Grant: To secure payment of the Price and any other amounts due pursuant to these Terms of Sale from time to time, and all of the Customer other obligations pursuant to these Terms of Sale, the Customer grants to FL a security interest in the Goods, and over all of the Customer’s present and after acquired personal property.
7.2 Cooperation and waiver: the Customer agrees to if required by FL:
(a) co-operate in good faith with FL to execute the documentation required to register a security interest in favour of FL on the Personal Property Securities Register and protect FL‘s interest in the Goods; and
(b) waive any right to receive a copy of the verification statement, pursuant to section 148 of the New Zealand Personal Property Securities Act 1999.
8. CONFIDENTIAL INFORMATION
8.1 Confidentiality: All intellectual property and other information belonging to the parties which by designation or by its nature is intended to be treated as confidential will be confidential information for the purposes of these Terms of Sale (Confidential Information).
8.2 Disclosure: The Customer will not without the prior written consent of FL use or disclose to any third party any of FL’s Confidential Information, except as reasonably required to enjoy the Goods and/or Services purchased, as required pursuant to law or a Court of competent jurisdiction.
9. INTELLECTUAL PROPERTY
9.1 Ownership: The Customer acknowledges that FL (or a third party licensor) owns the intellectual property rights in the Goods and/or Services, FlexR, and any other content, and unless expressly provided for in these Terms of Sale, nothing gives the Customer any right, title, or interest in such intellectual property by virtue of the Customer’s purchase of the Goods and/or Services, except as reasonably required to enjoy the Goods and/or Services purchased.
9.2 Use: You must not copy, reproduce, translate, adapt, vary, decompile, modify or disseminate the confidential information to a third party or do anything to damage or otherwise endanger FL’s (or a third party’s) intellectual property rights.
10. INDEMNITY
10.1 The Customer shall indemnify FL against all liabilities, costs (including full costs between solicitor and client), losses, claims, expenses or demands incurred by FL or any third party arising out of or incidental to the Customer’s non-compliance with these Terms of Sale, and from any third party claims arising out of or incidental to the supply or use of the Goods and/or Services.
11. LIMITATION OF LIABILITY
11.1 Restricted liability: Notwithstanding anything else in these Terms of Sale, FL will not be liable whatsoever to the Customer for any indirect loss, consequential loss, loss of profit, loss of bargain, loss of business opportunity or exemplary damages suffered by the Customer or any other person, flowing from any pre-contractual misrepresentation, forecast or breach of these Terms of Sale, whether contemplated by these Terms of Sale or not, and whether actionable in contract, tort (including negligence), equity or otherwise.
11.2 Liability cap: In the event that, notwithstanding clause 11.1, FL is found liable for any damages, loss or liability in connection with these Terms of Sale, such damages, loss and liability will, in aggregate, be limited to $1,000.
12. EXCLUSION OF LEGISLATION
12.1 Notwithstanding anything else in these Terms of Sale, the Customer acknowledges that they are acquiring the Goods and/or Services for a business purpose and agree the implied terms, guarantees, covenants, and conditions in the Contract and Commercial Law Act 2017, Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1993, do not apply, and are excluded to the fullest extent permitted by applicable law.
13. WARRANTY AND RETURN
13.1 No warranty: FL does not give any warranty, representation, guarantee or condition of sale, that any specific results, outcomes or performance can be achieved or expected from use of the Goods and/or Services. The Goods and/or Services are provided “as is”, without any other guarantees, warranties, conditions or representations (whether express, implied by law, trade custom or otherwise) including without limitation in relation to quality of any Goods and/or Services, merchantability, suitability for purpose, ownership, purchase of the Goods or otherwise.
13.2 Third party warranty: FL will use reasonable endeavours to pass on any manufacturer warranty to the Customer in relation to the Goods, if applicable. For the avoidance of doubt, manufacturer warranties are not made by FL.
14. DISPUTE RESOLUTION
14.1 The parties will endeavour to resolve any disputes in relation to this Terms of Sale and the supply of Goods and/or Services between them cooperatively in the first instance, prior to seeking resolution through the Courts.
15. MISCELLANEOUS
15.1 Governing Law: This Terms of Sale shall be governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
15.2 Notices: Notices will be sufficiently given if posted or successfully transmitted by email to the intended recipient at their last known address, which in the case of FL is office@flexr.co.nz. The Customer will notify FL in writing of any changes to the Customer’s contact details.
15.3 Variation: FL may vary these Terms of Sale at any time, by providing notice in writing to the Customer, or posting the varied terms on its Website. The Customer’s continued ordering of Goods and/or Services will deem the Customer’s acceptance of the varied terms. If the Customer does not accept the varied terms, the Customer may immediately terminate these Terms of Sale by providing notice in writing to FL and the version of the terms of sale immediately previous to the varied terms shall continue to apply to Goods and/or Services ordered prior to termination by the Customer.
15.4 Assignment: The Customer shall not assign or otherwise transfer or encumber its rights or obligations under these Terms of Sale except with the prior written consent of FL. FL can at any time assign or otherwise transfer, encumber or subcontract any of its rights and obligations under these Terms of Sale to a third party.
15.5 Force majeure: FL will not be liable for delay or failure in the performance of any of the obligations imposed by these Terms of Sale, provided that such failure is beyond their reasonable control.
15.6 Waiver: A party will not have waived or be deemed to have waived any provision of these Terms of Sale unless the waiver is in writing and signed by that party.
15.7 Survivorship: Termination of these Terms of Sale for any reason will not affect such rights and obligations of the parties as are intended to survive the termination.
15.8 No relationship: These Terms of Sale do not create any relationship of partnership, employment, agency or joint venture between the parties.
15.9 Circumvent: The Customer shall not circumvent, or attempt to circumvent, these Terms of Sale.
15.10 Severability: Should any part or provision of these Terms of Sale be held unenforceable or in conflict with any applicable laws or regulations, the invalid or unenforceable part or provision will be replaced with a provision which accomplishes, to such extent as possible, the original business purpose of the part or provision in a valid and enforceable manner, and the remainder of these Terms of Sale will remain binding on the parties.