Chillisoft Terms of Trade

The terms of trade set out below govern all of the supplies of Products from Chillisoft Ltd and Chillisoft Australia Pty Ltd (“Chillisoft”, “we”, “us”) to you the Reseller or the End-User (“you”). They replace all earlier Chillisoft terms of trade and any conditions contained in any document used by you and purporting to have contractual effect. Your ordering of any Products from Chillisoft indicates your acceptance of these terms of trade.

1.     General

1.1          In these conditions, “Software” includes the relevant software (excluding source code) and all relevant documentation, manuals, printed and written matter; “Supplier” means Chillisoft‘s suppliers; “Products” means Software and other goods or services of any kind available from Chillisoft; “Website” means any internet website owned and operated by Chillisoft.

1.2          When you purchase any Products online from the Website or otherwise use the Website, the Website trading terms shall apply as well as these terms of trade. In the event of any conflict between these terms of trade and the Website trading terms, these terms of trade shall prevail.

2.            Price and Orders

2.1            The current price list is available on our reseller extranet. We may alter the prices at any time by posting revised prices on the reseller extranet. By making an order you accept the prices as listed at that time.

2.2            You may order Products from us by phone, fax, email, or via our website(s). Subject to clause 2.3, we will accept your orders by supplying the Products that you order to you or your customer/s or by notifying you that we accept your order. For the purposes of this clause, ‘supplying the Products’ may (depending on the products ordered) mean the user name and password for the Products that you order is presented to you online or emailed to you or (if requested by you) to your customer/s or supply may be some other means, and in the case of tangible products means physical delivery of those products to you at the address specified by you unless otherwise agreed.

2.3            Chillisoft reserves the right to refuse to accept any order or any part of an order or to deliver

Products by instalments, in which case each instalment will comprise a separate contract and shall be paid for as if it were a separate order.

2.4          You are not entitled to cancel any order once the order has been accepted by us.

3.     Payment

3.1            Unless we have agreed to extend credit to you, you must pay in cash or by credit card before supply.

3.2            Where we have agreed in writing to extend credit to you, you must pay in full within 7 days of supply, or (only if we have agreed in writing) by the 20th of the month following the emailing of an invoice. Your payment is made only when funds have fully cleared through the banking system into our bank account.

3.3            We have sole discretion to determine the amount of credit we will extend to you at any time.

3.4            You agree to pay for the Products in full without deduction or setoff and to pay goods and services tax and any other government duties, levies or taxes in respect of the Products.

3.5            If payment is not made in full by the due date, we are entitled to charge you interest on the unpaid overdue balance at the rate of 2% per month, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by us, and we may charge you costs (including collection costs and legal costs on a solicitor-client basis) and decline to accept orders from you or suspend delivery of further Products or performance of further services until the account is paid in full.

3.6            If payment for Products is not made in full by the due date, we may suspend access to updates, support and other ongoing services relating to the unpaid invoice(s), and advise the relevant end-users of the reason for such suspension.

3.7            Notwithstanding clauses 3.2 and 3.3 above, all payments shall immediately become due to us if we reasonably believe that the information which you have given us in your application for credit is incorrect or no longer correct and you have failed to give us correct information satisfactory to us within 5 days of our request, if you sell or otherwise dispose of any goods which have not been paid for without our consent, if you become insolvent, commit any act of bankruptcy, if a receiver, liquidator or statutory manager is appointed over any of your assets or undertaking, or if you make or attempt to make an arrangement or composition with creditors.

4.            Property

4.1          With the exception of Software which is subject to licence (where it is not intended that title should ever pass to you, but shall remain in Chillisoft for Chillisoft proprietary products, or with the licensor for third party products, as specified in the relevant licence agreement), property and ownership in Products, whether in their original form or incorporated in or attached to another product will not pass to you but will remain with us until we receive payment in full of the purchase price of the Products and all other amounts that you owe to us for any reason.

4.2          For Products other than Software, until property passes to you:

(a)          you shall hold the Products in trust as fiduciary bailee for us, and store them in a manner to enable them to be identified and cross referenced to particular invoices; and

(b)          Chillisoft holds a security interest in those Products and may register its security interest on the Personal Property Securities Register.

4.3          Where you acquire any Products for your own use, you must tell us immediately in writing and you must not resell or part with possession of those Products, before you have paid for them in full, unless we have given you written consent. Chillisoft may terminate your appointment as a Chillisoft reseller in the event of any misuse of a Not for Resale (NFR) Product licence.

5.            Returns

5.1          You acknowledge and agree that returns may only be accepted by us by specific individual agreement by us, given within 7 days of invoice.  Where the product is software supplied by electronic delivery, once the software is installed and the licence is activated, it cannot be returned.

6.            Warranties

6.1          Subject to and without limiting any rights that your customers might have under the NZ Consumer Guarantees Act 1993 and the applicable Australian consumer legislation:

(a)          Products are subject to the manufacturers’ warranties only and in the case of Software any such warranties are included in the Product licence agreement;

(b)          we will assist you where reasonably possible with making any warranty claim, without being directly liable to you under any warranty.

6.2          To the extent permitted by law, we exclude all warranties, terms and conditions (including without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise.

6.3          The Reseller acknowledges that when you acquire Products from us for your own use the supply of such Products is a supply for business purposes in terms of the Consumer Guarantees Act 1993 and accordingly, the provisions of the Consumer Guarantees Act 1993 do not apply to such supplies by Chillisoft to you. You further acknowledge that the Consumer Guarantees Act 1993 does not apply as between Chillisoft and the Reseller in respect of any supplies of Products or services which you acquire from us for re-supply.

6.4          In respect of all Products and services that you acquire from us for re-supply as goods or services ordinarily acquired for personal household or domestic use or consumption (“Consumer Products”) you warrant that:

(a)          if you supply the Consumer Products directly to an end user/consumer you will do so using terms and conditions of supply which exclude liability for any claims under the Consumer Guarantees Act 1993; and

(b)          if your customer acquires any goods or services for re-supply, your customer and each person in the distribution chain will exclude liability in its contract for supply for any claims under the Consumer Guarantees Act 1993 (provided that neither this sub-clause nor clause 6.4(a) permits you to sell Consumer Products to customers for re-supply by them and in order to do so you must be expressly authorised by us to do so),

but in each case only where the end user/consumer acquires or holds itself out as acquiring the Consumer Products for business purposes.

6.5          You agree to indemnify us, our suppliers and any manufacturers of the goods against any failure by you, your customers or any person in your distribution chain to properly contract out of liability to end users/consumers who acquire the Consumer Products for business purposes or hold themselves out as acquiring the Consumer Products for business purposes under the Consumer Guarantees Act 1993.

7.            Limitation of liability

7.1          Chillisoft’s maximum liability to you shall be limited to the value of any faulty Products or services supplied, and Chillisoft and its employees, contractors and agents, any manufacturers of the Products or any of their materials or components and any licensors of Software or suppliers of services, will not be liable to you for loss or damage of any kind however that loss or damage is caused or arises. This exclusion of liability includes, but is not limited to, costs (including costs of returning Products to Chillisoft or to any manufacturer or licensor), consequential loss, loss of profits and damage caused by or arising from delays in manufacturing or delivery, faulty or delayed installation, unreasonable use, negligence (including a failure to do something which should have been done or to prevent something from happening), faulty specifications and design, and faulty materials, components, manufacture, compilation, or assembly of the Products. In respect of the liability of any manufacturers of the Products or any of their materials or components and any licensors of Software or suppliers of services, in the event of any conflict between this clause and the limitation of liability clauses in the relevant licence agreement, the licence agreement will take precedence.

7.2          We will not be liable to you for any losses caused by events beyond our reasonable control including without limitation fire, lack of raw materials, flood, strikes, labour troubles, or other industrial disturbances, inevitable accidents, war embargoes, blockages, legal restrictions, riots or insurrections.

8.     Intellectual property and Confidentiality

8.1          All intellectual property shall remain the property of Chillisoft or any Supplier entitled to it, and neither Chillisoft nor its Suppliers transfer any right, title or interest in the intellectual property to you.

8.2          You must not use any trade marks which are the property of Chillisoft or its Suppliers, or any similar words or marks, or any combination of words which includes any of those trade marks or any similar words or marks, except to the extent authorised by Chillisoft in writing.

8.3          You agree to dispatch the Products only under the trade marks under which they are supplied by Chillisoft, and under no circumstances shall you apply any of the trade marks to any product which is not a genuine branded product supplied to you by Chillisoft.

8.4          You must not cause or permit anything which may interfere with, damage or endanger the trade marks or other intellectual property rights of Chillisoft or its Suppliers, or assist or allow others to do so.

8.5          You must advise Chillisoft immediately when you become aware of any unauthorised use or attempted use by any person of the trade marks or other intellectual property rights of Chillisoft or its Suppliers.

8.6          You may not register a business name incorporating the words “Chillisoft”.

8.7          If your account with Chillisoft is terminated for any reason, you must immediately discontinue use of any of the trade marks which are the property of Chillisoft in any sign, or advertising and thereafter you shall not use those trade marks directly or indirectly in connection with your business.

8.8          You agree to ensure that all Confidential Information disclosed by Chillisoft to you is only made available to your employees (on a need to know basis) and only on the basis that those employees at all times maintain strict confidentiality.

8.9          This clause 9 shall survive notwithstanding that you may cease to order Products from us (including because we cease to accept orders from you).

9.            General

9.1          Chillisoft reserves the right to change these terms of trade from time to time by posting an updated or new version of the terms of trade on our reseller extranet. By continuing to order Products from us after updated or new terms of trade have been posted on the reseller extranet, you accept the updated or new terms of trade.

9.2          If Chillisoft fails to enforce any terms or to exercise its rights under these terms of trade at any time, Chillisoft has not waived those rights.

9.3          If any provision of these terms of trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect.

9.4          These terms of trade are governed by the laws of New Zealand and any dispute under them shall be subject to the exclusive jurisdiction of the Courts of New Zealand.

 

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