Agovor Limited - Terms & Conditions of Supply

1. TERMS

1.1 These terms, together with any quotation and invoice provided by Agovor to you, form the legally binding agreement between you and Agovor (Agreement) and apply in respect of all Equipment and Services supplied by Agovor to you.

1.2 You will become bound by these terms as soon Agovor supplies a quotation to you.

1.3 From time to time we may need to make changes to this Agreement. We will notify you of any changes to this Agreement by posting them on the Website and you agree by continuing to access or use the Service to be bound by the updated terms and conditions.

2. QUOTATIONS

2.1 Quotations shall only be valid for the period specified in such quotation or estimate, and if no timeframe is specified, 30 days from the date of the relevant quotation.

2.2 All quotations provided by Agovor are provided subject to any changes to the specification of the Equipment or Services.

2.3 Upon acceptance by you of a quotation (Accepted Quotation), we will issue an invoice to you for the Equipment and Services specified in the Accepted Quotation.

2.4 You may not cancel any order for Equipment following acceptance by you of the relevant quotation.

3. PRICE

3.1 In respect of all Equipment and Services supplied by Agovor to you, you will pay to Agovor the Price applicable to such Equipment and Services, and any taxes and other applicable amounts referred to in clause 3.2.

3.2 Unless expressly specified otherwise in your Accepted Quotation, all Prices are exclusive of freight, insurance, installation, commissioning and all applicable taxes (including value add or goods and services tax) assesses or levied in connection with the supply of the Equipment and Services to you.

4. PAYMENT

4.1 Payment of the Price for the Equipment and Services is due in the manner and at the times specified in your Accepted Quotation.

4.2 Agovor may, in its discretion, request you to pay a deposit upon acceptance of a quotation or at such other time notified by Agovor.

4.3 Interest at 2.5% per month calculated on a daily basis shall be payable on any moneys outstanding by you to Agovor from the date payment is due until the date payment is received by Agovor. Such interest shall be payable on demand.

4.4 You shall pay all costs and expenses incurred by Agovor in the recovery or attempted recovery of outstanding moneys and enforcement of your Agreement.

4.5 Agovor may suspend performance of its delivery and/or service obligations under your Agreement at any time that amounts owing by you are outstanding.

5. EQUIPMENT

Unless expressly provided otherwise, this section 5 (Equipment) will apply to you whether you have purchased or leased your Equipment from us (as specified in your Accepted Quotation).

Delivery

5.1 Unless expressly provided otherwise by Agovor in your Accepted Quotation, delivery of Equipment shall be made EXW at Agovor’s premises in New Zealand and shall be deemed to have occurred at the time that Agovor notifies you that the Equipment is available for pickup (Delivery).

5.2 If requested by you and agreed by us, we will arrange transportation of the Equipment on your behalf (at your sole cost and risk).

5.3 Any quotations relating to the time for delivery of Equipment are estimates only and not commitments. Agovor will not be bound by, or liable for a failure to comply with, any such quotations.

5.4 If you do not pickup (or arrange for a third party to pick up) your Equipment within 7 days of Delivery, Agovor may charge you, and you shall pay to us upon demand, reasonable storage costs for your Equipment until such time as the Equipment is picked up from our premises.

Risk

5.5 Risk of any loss, damage or deterioration of or to the Equipment shall be borne by you from the time of Delivery of the Equipment, including in a situation where we have agreed to arrange transportation on your behalf.

5.6 It is up to you to satisfactorily insure all risks in the Equipment from the time that risk passes to you in such items.

Title

5.7 If you are purchasing Equipment from Agovor (as specified in your Accepted Quotation), property in and ownership of the Equipment remains with Agovor until payment has been made in full by you for the Equipment. Until such time as title has passed to you, you will hold and deal with the Equipment as a fiduciary agent and bailee for Agovor.

5.8 If you are leasing the Equipment from Agovor (as specified in your Accepted Quotation), Property in and ownership of all Equipment remains with Agovor at all times. You are entitled to use the Equipment as bailee only and must not offer, sell, assign, transfer, charge, mortgage, pledge or create any form of security interest over the Equipment.

5.9 You must (at your own cost) take all action Agovor requests (including providing all consents and executing all documents) necessary to enable Agovor to register (in any jurisdiction in which the Equipment is stored or you undertake business) any security interest created by or in connection with your Agreement and the Equipment supplied to you on any relevant register in such jurisdiction.

5.10 You must not do (or omit to do) anything that may jeopardise our rights as owner of the Equipment, and shall not either directly or indirectly create or suffer to exist any security interest affecting all or any part of such Equipment. This restriction shall only apply prior to payment if full for the Equipment if you are purchasing the Equipment from Agovor under this Agreement.

Damaged or defective Equipment

5.11 If you discover any damage, defect or fault in your Equipment (on Delivery or at any other time throughout the Term), you must notify us as soon as reasonably practicable of such damage, defect or fault and, other than in the case of a minor or insignificant fault, immediately cease to use that Equipment. Following notification of any damage, defect or fault, we will (at our discretion and subject to clause 5.13) organise either the repair or replacement of the relevant Equipment (or part of it) at your cost, unless the defect or fault constitutes a breach of the warranty in clause 5.14, in which case the remedy in clause 5.17 will apply.

5.12 In the event that:

(a) any item of Equipment leased to you by us under this Agreement is lost or destroyed during the Term, you will pay us the replacement cost of the lost or destroyed Equipment (as notified by us). You will pursue all possible insurance claims for the benefit of Agovor in respect of the lost or destroyed Equipment. If requested by you, we will use our reasonable endeavours to provide you with a replacement within a reasonable timeframe (having regard to our stocks at the relevant time).

(b) any item of Equipment owned by you is lost or destroyed during the Term, if requested by you, we will use our reasonable endeavours to provide you with a replacement within a reasonable timeframe (having regard to our stocks at the relevant time). Such replacement Equipment can either be purchased by you (at the purchase price notified by Agovor) or leased to you for the Term at the price notified by Agovor.

5.13 Support & parts availability. Subject to non-excludable law, Agovor will take reasonable steps to make repair services and spare parts available for at least five (5) years from Delivery or seven (7) years from end-of-production of the model, whichever is later, on commercially reasonable terms and subject to parts availability. After that period, support may be discontinued. Agovor may use new or refurbished parts.

Agovor Equipment warranty

5.14 Agovor warrants that, for a period equal to the lesser of (i) three years from the date of Delivery; and (ii) 2000 hours of Equipment use (Warranty Period), the Equipment will be free of any material defects in materials or workmanship.

5.15 Other than any warranty provided under clause 5.14, to the fullest extent permissible at law:

(a) any warranties, conditions, representations or guarantees whether implied by statute, common law or custom of the trade or otherwise, including implied warranties, guarantees or conditions of merchantability and/or fitness for a particular purpose, are excluded; and

(b) Agovor shall have no liability to you for anything, other than a breach by Agovor of an express provision of this Agreement.

5.16 You agree the Equipment and Service is acquired for the purposes of a business, and as such, the guarantees provided under the New Zealand Consumer Guarantees Act 1993 do not apply.

5.17 In the event of a breach of the warranty in clause 5.14, Agovor will, in its discretion, repair or replace the Equipment (which you must return to Agovor, at our cost, prior to any replacement being made available) or refund the Price paid for the Equipment, provided such defects have been notified to Agovor within the Warranty Period and any claim is made in writing and is accompanied by particulars of the defects and with product and serial number details.

5.18 Agovor shall not be liable to repair, replace or refund under clause

5.17 (although may agree to do so at your cost):

(a) in respect of any damage occurring after Delivery of the Equipment or due to your continued use of Equipment after a defect, fault or warranty breach has been identified;

(b) if any attempt to repair Equipment has been made by any person other than Agovor;

(d) if the relevant Equipment have not been stored, maintained or used in a proper and diligent manner; or

(e) for so long as you are in default in relation to any obligation (including as to payment) under this Agreement.

This obligation to repair, replace or refund is your sole remedy in respect of any defective or returned Equipment or any breach of the warranty in clause 5.14.

6. SERVICES

6.1 We grant to you a non-exclusive, non-transferable, non-assignable right to access and use the Services strictly in accordance with and subject to the terms of this Agreement.

6.2 We will provide the Support Services and the cost of such standard Support Services shall be charged on a time and materials basis, as notified by us.

6.3 You are responsible for all of the acts and omissions of your personnel, contractors, users, invitees, customers, representatives and agents (Customer Representatives) in connection with their access to and use of the Services.

6.4 Although we will use reasonable efforts to ensure the Services are available 24 hours a day, 7 days a week, there may be times that the Services are unavailable (including to permit maintenance or other upgrade activity to take place).

6.5 When accessing and using the Services, you must (and must ensure your Customer Representatives):

(a) only use the Services for the purpose anticipated by this Agreement;

(b) comply with all reasonable operating procedures, instructions or acceptable use policies notified by us from time to time;

(c) follow all reasonable instructions and directions from us in respect of the use of and updates to the Services (and underlying software or networks);

(d) not attempt to undermine the security or integrity of Service (or underlying software or networks);

(e) not use, or misuse, the Services (or underlying software) in any way which may impair their functionality, or other systems used to deliver the Services or impair the ability of any other user to access and use the Services;

(f) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs or software used to deliver the Services or Equipment.

6.6 If we consider (acting reasonably) that you have engaged in any unlawful or unauthorised activity, have used the Services (or any part of them) beyond the scope of its authorisation or that you may be in breach of this Agreement, we may take one or more of the following actions in our absolute discretion:

(a) limit or suspend your access to the Services; or

(b) terminate this Agreement immediately by notice to you in writing.

6.7 You may not access the Service if you are a direct competitor of ours, except with our prior written consent. In addition, you may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

7. Your warranties

7.1 You warrant that:

(a) all information provided by you to Agovor in connection with this Agreement is accurate, complete and up to date, and that the use by Agovor of such information or materials (in the manner anticipated by your Agreement) will not breach the rights (including the privacy or intellectual property rights) of any person.

(b) You will only use the Equipment for the purpose for which it was intended and supplied by Agovor.

7.2 Without limiting any other right or remedy available to Agovor for a breach of warranty by you, to the extent Agovor incurs any cost or expense as a result of a breach by you of the warranties in clause 7.1, you shall reimburse Agovor for such costs and expenses.

8. Termination

8.1 Without limiting any other right of termination in this Agreement, if:

(a) you default in the due payment of any moneys payable to Agovor, or in the due performance of any of your other obligations under this Agreement and fail to remedy such default within 10 working days of written notice from us specifying the default;

(b) you breach any of the warranties in clause 7.1;

(c) you commit any act of bankruptcy, enter into any composition or arrangement with creditors or (in the case of a company) do any act which would render you liable to be wound up or if a resolution is passed or proceedings commenced for the you winding up or if a receiver is appointed in respect of all or any of your assets; or

(d) you act in a manner that detrimentally affects (or may detrimentally affect) the reputation of Agovor or any of its Equipment or personnel.

we may:

(e) terminate this Agreement on written notice to you with immediate effect;

(f) require all moneys outstanding to be immediately due and payable and enforce the security interest created under clause 5.9; and/or

(g) enter upon your property where the Equipment is situated and take possession of and/or remove such Equipment.

8.2 If we default in the due performance of any of our material obligations under this Agreement and fail to remedy such default within 10 working days of written notice from you specifying the default, you may terminate this Agreement on written notice to us and we shall immediately cease to provide the Services and refund you any amounts paid in advance for the Services (but not Equipment) that apply to the period following termination.

8.3 If you have leased the Equipment from us under this Agreement (or have purchased the Equipment but not yet paid the full Price for the Equipment at the date of expiry or termination of this Agreement), on the expiry or termination of this Agreement for any reason, you must (at your own cost) return the Equipment to Agovor at the location notified by Agovor for this purpose and the Equipment must be returned in the following condition:

(a) in the same condition as the Equipment was Delivered, subject only to fair wear and tear; and

(b) in accordance with such other reasonable conditions as notified in writing by the Agovor prior to return,

(Return Condition). If the Equipment is not returned in the Return Condition, we may:

(d) charge you for the replacement of the relevant Equipment, if such equipment is not able to be easily repaired.

If the Equipment is not returned within the agreed timeframes, we may enter upon your premises where the Equipment is situated and take possession of and/or remove the Equipment without being responsible for any damage caused.

8.4 The expiry or termination of this Agreement will be without prejudice to either party's rights and remedies in respect of any breach of this Agreement by the other party occurring prior to such termination or expiry.

9. Liability

9.1 Except to the extent liability cannot be limited by law, the total liability of Agovor for any loss arising from any defect or non-compliance of the Equipment or any other breach by Agovor of its obligations under or in connection with this Agreement will not in any circumstances exceed the Price for the Equipment or Services (as applicable) in respect of which liability arises.

9.2 You will indemnify Agovor against all claims (including third party claims), losses, damages, costs and liabilities (losses) sustained or incurred by us in relation to any use of the Equipment or Services by you or any of your personnel, breach of this Agreement by you or the negligence or wrongful acts or omissions of you or any of your employees, contractors, customers or representatives.

9.3 Neither party shall be liable for any loss of profits, or any consequential, indirect or special damage or damage or injury of any kind suffered by the other party or any of its representatives.

10. Privacy

10.1 Each of you and Agovor agree to comply with all applicable privacy laws, directives and policies in connection with either of our processing of personal information that you or we gain access to in connection with this Agreement.

10.2 You authorise us to collect and hold personal information we consider appropriate to be used for administration, operational and marketing purposes related to this Agreement, and you shall ensure that you have obtained express consent to such use and disclosure from the relevant individuals.

10.3 You also acknowledge and agree that Agovor may collect, store, use and disclose all information supplied by you (and your representatives) in the manner specified in the Agovor privacy policy)

11. General

11.1 All intellectual property rights in the Equipment and the Services (including all designs, specifications, know how, documents, work and software produced by or for Agovor in connection with the Equipment and Services) and all enhancements, adaptations, modifications and developments of and to such intellectual property are and shall remain the property of Agovor. You must not attempt to (or enable a third party to attempt to) modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Equipment (or any intellectual property in the Equipment) or otherwise use (or allow any other person to use) the Equipment (or any intellectual property rights in them) for any purpose other than as anticipated by this Agreement.

11.2 To the extent any confidential information is provided by Agovor to you, you must keep that information confidential.

11.3 Unless otherwise stated in your quotation, you will be solely responsible for obtaining (at your own cost) any permits, licences or approvals that may be necessary or required in connection with the Equipment or its use.

11.4 The parties agree to use their best endeavours to promptly resolve any dispute or difference between them by way of good faith negotiations. Agovor may, at its option, require you to submit to mediation in New Zealand with the assistance of a qualified mediator.

11.5 Neither party will be liable for any delay or for any failure to fulfil its obligations under this Agreement (except with respect to any payment obligations) if the failure or delay arises directly or indirectly from or as a consequence of any cause or circumstance beyond the reasonable control of that party.

11.6 If any provision of this Agreement is, or becomes unenforceable, illegal or invalid for any reason it will be deemed to be severed from this Agreement without affecting the validity of the remainder of the Agreement.

11.7 The failure of Agovor to enforce any provision of this Agreement shall not be treated as a waiver of that provision, nor shall it affect our future right to enforce that provision.

11.8 This Agreement will be governed by, and construed in accordance with, the laws of New Zealand and each of us submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of this Agreement.

11.9 This Agreement comprises the entire agreement between Agovor and you, and all other terms, including any terms proposed (or referenced) in any other document by you, are expressly excluded and shall be of no effect.

12. Definitions

12.1 In these terms:

We, us, our or Agovor means Agovor Limited.

Delivery has the meaning given to it in clause 5.1.

Equipment means any Equipment supplied by Agovor to you, as detailed in your Accepted Quotation.

Price means the price of the Equipment and Services specified in your Accepted Quotation.

Services means the subscription services performed by Agovor for you in connection with the Equipment, as detailed in [your Accepted Quotation], and includes the Support Services.

Support Services means the standard access and support services provided by (or on behalf of) us in connection with the Services.

You or your means the customer specified as such in the quotation supplied by Agovor for the Equipment and Services.

12.2 A reference to a person includes a corporation, association, firm, company, partnership, individual or government or local body.