This Agreement consists of these terms and the relevant TSB Purchase Order and applies only to instances where no other written agreement exists between the parties in respect of the subject matter of the relevant TSB Purchase Order. If a prior agreement in respect of the aforementioned subject matter exists, then that agreement will supersede this Agreement.

1. Definitions

2. Supply of Goods and Services

Services:  the Supplier will perform the Services in accordance with the description within the Purchase Order and to the standard reasonably expected from a supplier supplying the same or similar services or according to good industry standards.  

Whilst on the Premises, the Supplier must ensure that it will: 

a. comply with all Regulatory Requirements and all TSB Health and Safety Policies;
b. prevent unnecessary noise, disturbance or interference with others;
c. prevent any damage or loss to TSB property; 
d. act in a professional and courteous manner at all times; and 
e. observe and adhere to any reasonable directions or instructions given by TSB in connection with this Agreement.

Goods: TSB will order Goods through a Purchase Order and will pay the Amount to the Supplier in accordance with clause 3.  The Supplier will deliver the Goods at the Delivery Address and on the Delivery Date, unless TSB advises otherwise.  

No contract shall exist between the parties unless TSB has generated a relevant Purchase Order, or where TSB has agreed otherwise. 

3. Amount

The Supplier must supply the Goods and/or Services to TSB for the Amount specified in the Purchase Order. The Amount will include all materials, labour, packaging, storage, freight, duty, tax and GST.  TSB will pay the Amount on the 20th day of the month following the month in which TSB receives a correct tax invoice that includes the TSB Purchase Order number.  If TSB disputes an Amount, it will notify the Supplier, pay the portion of the undisputed amount, and will withhold payment of the disputed amount until the dispute is resolved under clause 13.

4. Changes

TSB may change its requirements for any Purchase Order at any time prior to Delivery of the Goods or Services and will send the Supplier notice of the change.  If a change affects the Amount then a fair adjustment will be made as agreed between both parties, except where the Supplier has not requested an adjustment within five Working Days from the date that TSB has issued notice.

5. Delivery

The Supplier must Deliver the Goods and/or Services to the Delivery Address.  If a Delivery is, or may be late, then the Supplier will arrange an alternative way to ensure that the Delivery is undertaken by the fastest method possible and at its cost.  Title to the Goods pass from the Supplier to TSB at either of the latest in time:

  1. the Delivery of the Goods into the possession or control of TSB;  
  2. the payment by TSB for the Goods; or, 
  3. the point in time immediately prior to the point at which it is affixed or installed at any TSB property or site.  

Risk in the Goods will remain with the Supplier and will only pass to TSB upon Acceptance of the Goods.

6. Acceptance of the Goods and/or Services

TSB will be deemed to Accept the Goods and/or Services after 30 Working Days from the date of Delivery of the Goods.  

Where TSB, in its sole discretion, needs to conduct acceptance testing, then TSB will notify the Supplier that acceptance testing is necessary and that Acceptance will occur after 90 Working Days of the Delivery Date. In the event that TSB rejects the Goods and/or Services that it considers, in its sole discretion, is Defective or does not comply with the description set out in the Purchase Order, the Supplier will at its own cost and as advised by TSB, either:

  1. collect the rejected Goods;
  2. cease to provide the Services; or
  3. pay the costs incurred by TSB to return the rejected Goods to the Supplier (including any costs incurred removing a Good from a location at which it has been affixed or installed).

Risk in any rejected Good will, from the time it is rejected by TSB, vest in the Supplier. Title will pass when the Supplier takes possession or control of the rejected Goods.

7. Insurance 

The Supplier must: 

  1. insure Goods (or any component of it) for its full replacement value until TSB has Accepted the Goods; and
  2. ensure that it has proper insurances whilst suppling Services to TSB.

8. Warranties 

Goods: Despite any inspection, Acceptance of Goods, payment of the Amount by TSB, or any other work done in respect of or use of the Goods by TSB, the Supplier warrants and guarantees each of the Goods will, for at least 12 months from the date of Acceptance: 

  1. be free from any defects latent or otherwise, or defect in design; 
  2. be of merchantable quality, and will be new and unused on deliver Delivery (unless otherwise agreed by TSB), and if a shelf life is applicable, then at least 95% of that shelf life remains at the time of Delivery 
  3. conform to any applicable Regulatory Requirements;
  4. conform as to quantity, quality, description, standard of design, and performance as specified by TSB; 
  5. be fit for the use and purpose for which TSB requires it; 
  6. that any ownership, possession, use or resale of the Goods by TSB will not infringe any proprietary right, intellectual property right, or interest of any third party; and 
  7. be packaged and transported in a manner to prevent damage.

The Supplier will pass on to TSB the benefit of any warranty or guarantee received from a third party in respect of the Goods that are Defective and where these cannot pass to TSB, then the Supplier will in its own name, and under TSB authority and instruction, pursue any recourse against a third party for a Defect. 

The Supplier will provide to TSB any other warranties and guarantees express or implied by custom or law.

Services:  The Supplier warrants that: 

  1. it holds all necessary licences, permits or authorisation (if applicable) to supply the Services;
  2. it is fully trained, qualified and duly skilled to supply the Services; and
  3. it will use all reasonable care, and diligence when supplying the Services.

9. Warranty of Goods 

Where TSB make a warranty claim, the Supplier will promptly remedy each warranty claim to TSB's satisfaction.  

All warranties will start again for the full period on completion of remedying each Defect.  If any Defect results in TSB not receiving the expected value or performance from the Goods, then Supplier will, at its cost, promptly replace the Goods with new and compliant Goods with a full warranty, if requested by TSB. 

10. Intellectual Property Rights

The parties agree that each of the pre-existing Intellectual Property remains the property of its current owners and each party confirms that pre-existing Intellectual Property does not infringe upon the rights of any third party's intellectual property. 

Any new Intellectual Property or Intellectual Property Rights that is created as a result of the supply of Goods and/or Services by the Supplier or by TSB or by both parties shall vest exclusively in TSB.  

The Supplier will assist TSB, as necessary and as required by TSB in order for TSB to register or assert its Intellectual Property or its Intellectual Property Rights, at any time. 

11. Assignment

The Supplier may not assign or subcontract this Agreement or any Purchase Orders without TSB consent.

12. Termination

TSB may terminate this Agreement where:

  1. Goods are:
    1. not Delivered; 
    2. Defective; or 
    3. not in compliance with the description in the Purchase Order,
  2. the Supplier breaches by act or omission, any of its obligations under this Agreement and fails to remedy such breach to TSB's satisfaction within five Working Days after TSB has notified the Supplier of the breach;
  3. any direct or indirect change of control of the Supplier's business occurs; or 
  4. the Supplier is or becomes insolvent or bankrupt, goes into receivership or liquidation, or amalgamates with any other person(s).

Where TSB terminates this Agreement, it may:

  1. withhold any payment due to the Supplier until the matter is resolved to TSB's satisfaction; 
  2. cause the Supplier to remove the Goods from TSB's premises, at the Supplier's risk and expense, and TSB: 
    1. will not be obliged to pay for the Goods;
    2. will receive a refund from the Supplier where Goods have already been paid; or 
    3. Will set-off the amount paid against any amount TSB may owe the Supplier. 

Where the Supplier fails to remove the Goods within 20 Working Days of the notification of termination by TSB, then TSB will return the Goods to the Supplier at the Supplier's own risk and expense.

Nothing in this clause 12 will affect TSB's rights to claim for any direct or indirect loss or damages (including legal cost).

13. Disputes 

In the event of dispute the parties will endeavour to resolve the dispute promptly by negotiation. If the parties cannot resolve the dispute by negotiation, the dispute will be referred to mediation.

If mediation fails, then the parties may pursue a claim in the courts.  The parties shall bear their own legal costs, but will equally share the costs associated to negotiation and/or mediation.

Pending resolution of the dispute, the parties will continue to perform all their obligations under the Agreement, unless they agree otherwise. 

14. Liability and Indemnity

Unless prohibited by law, the Supplier will indemnify TSB and TSB Personnel for any physical, direct loss and Indirect Loss or damage (including legal fees) and against any claims or proceedings against TSB or TSB Personnel to the extent caused or contributed by the Supplier. 

TSB will indemnify the Supplier for direct loss caused by TSB's negligence or recklessness.  TSB will under no circumstance be liable for any Indirect Loss or damage.  Where TSB is found liable for loss or damage, its maximum aggregate liability will be capped to the value of the relevant Purchase Order. 

15. Force Majeure 

Neither party is liable for any failure or delay in fulfilling their obligations under this Agreement in the event of a Force Majeure.  

Force Majeure shall not include: 

  1. industrial action; or
  2. the Supplier's inability to supply the Goods due to disputes with its third party suppliers; or
  3. the Supplier or its suppliers not having taken all reasonable steps to ensure systems do not fail due to digital date recognition errors. 

16. Confidentiality and Privacy

The Supplier must keep confidential any and all information acquired from TSB or TSB Personnel including any other personal information that it obtains in connection with, or in the performance of, this Agreement. 

17. Security and Regulations

The Supplier will comply with TSB's security, any applicable Regulatory Requirements, and operational requirements where it has access to any TSB, or TSB Personnel, property or information. 

18. General 

All amounts are in New Zealand dollars, unless otherwise specified. 

If all or any part of a provision of this Agreement is invalid or unenforceable, that part or provision will be severed and will not affect the validity or enforceability of the remaining provisions of this Agreement.

If TSB fails to immediately enforce its rights pursuant to this Agreement, then that will not constitute a waiver of its rights and TSB can enforce its rights at any time.  A waiver by TSB of a breach of this Agreement is not a waiver of any further breach or any other breach of this Agreement.

The Laws of New Zealand apply to this Agreement and each party submits to the exclusive jurisdiction of the courts of New Zealand.  Claims must be lodged in the New Plymouth courts at first instance.