Terms and conditions

Talley's Limited

Purchase Terms and Conditions

These Purchase Terms and Conditions ("Terms") apply to all transactions between Talley's Limited ("Talley's") and you ("Supplier") and will be deemed to be incorporated into every Purchase Order made by Talley's to the Supplier.

1. Definitions

In these Terms, unless the context otherwise requires:

• "Confidential Information" has the meaning given in clause 11.
• "Force Majeure Event" means an unforeseeable event caused by a circumstance beyond a party's reasonable control and that could not have been prevented or avoided by the exercise of all due diligence.
• "Goods" means any goods which are the subject of a Purchase Order to be supplied by the Supplier to Talley's.
• "GST" means Goods and Services Tax as defined in the Goods and Services Tax Act 1985.
• "GST Act" means Goods and Services Tax Act 1985.
• "Talley's" means Talley's Limited.
• "Purchase Order" means a purchase order issued by Talley's to a Supplier for the supply of Goods and/or Services.
• "Services" means any services which are the subject of a Purchase Order to be supplied by the Supplier to Talley's.
• "Specifications" means the specifications or quality parameters included or referred to in the Purchase Order.
• "Terms" means these terms and conditions.
• "Warranties" means those warranties set out in clause 9.
• "Working Days" means any day of the week other than a Saturday, Sunday or a New Zealand statutory public holiday.

References to "include" or "including" do not imply any limitation. A reference to an enactment, regulation or industry standard is a reference to that enactment, regulation or industry standard as amended. The singular includes the plural and vice versa. "Person" includes a reference to a body corporate, government agency and to an unincorporated body or persons.

2. Ordering of Goods

Purchase Orders

1. Talley's may order Goods or Services by submitting to the Supplier a completed Purchase Order, electronically or otherwise.
2. The Purchase Order will be deemed accepted and binding on the Supplier, unless the Supplier notifies Talley's in writing that it cannot accept the Purchase Order within 3 Working Days of the date of the Purchase Order.
3. Talley's can withdraw the Purchase Order without liability or compensation to the Supplier at any time prior to acceptance by the Supplier.

Fulfilment of Purchase Orders

1. Time is of the essence in the fulfilment of each and every Purchase Order. The Supplier will immediately advise Talley's in writing of any delay or anticipated delay in the delivery or performance of a Purchase Order.

3. No Minimum Volume Commitment

Nothing in these Terms requires Talley's to purchase any minimum volume of Goods or Services from the Supplier, or requires Talley's to incur any minimum spend with the Supplier.

4. Delivery

1. All Goods and Services shall be delivered within the time specified in the Purchase Order ("Delivery Date").
2. The Supplier shall give notice immediately if a Delivery Date in an accepted Purchase Order cannot be met ("Late Delivery Notice"). The Supplier will then have 10 Working Days from receipt of the Late Delivery Notice to remedy the late delivery.
3. The Goods will not be deemed delivered unless an authorised representative of Talley's has signed the delivery acknowledgement receipt.
4. The provision of Services will not be deemed completed unless an authorised representative of Talley's has signed a service completion acknowledgment receipt.
5. Title in the Goods passes to Talley's upon payment. Risk of loss or damage to the Goods passes to Talley's upon delivery of the Goods.

5. Quality

1. Talley's reserves the right to inspect or test Goods by a Talley's employee or appointed representative at its cost before delivery. The Supplier shall facilitate inspection or testing when required by Talley's.
2. Goods will only be deemed to have been accepted by Talley's when they have been inspected and expressly accepted by an authorised employee or representative of Talley's.
3. If the Goods or Services are found to be non-compliant with the Warranties ("Defective Goods or Services"), then Talley's may do any one or more of the following at the Supplier's cost by giving the Supplier written notice, together with any reasonable evidence to support the warranty claim ("Warranty Claim"):
   1. Require the Supplier to repair the Defective Goods or Services;
   2. Require the Supplier to replace the Defective Goods with identical Goods;
   3. Require the Supplier to re-perform the Defective Services; or
   4. Reject the Defective Goods or Services and require the Supplier to provide a refund or a credit against the Price paid by Talley's.
4. The Supplier must comply with the requirements set out in the Warranty Claim within 7 Working Days of the date of the Warranty Claim.
5. If Talley's is not satisfied (acting reasonably) with the Supplier's progress in repairing, replacing or re-performing the Defective Goods or Services, then Talley's may:
   1. Reject the Defective Goods or Services and clause 5(d) will apply; or
   2. Arrange for the Defective Goods to be repaired or replaced by a third party and the Supplier will reimburse all costs and expenses incurred by Talley's in doing so.
6. If the Supplier receives a Warranty Claim rejecting the Defective Goods under clause 5(c)(iv), then the Supplier must remove any rejected Goods from Talley's premises at the Supplier's risk and cost. If the Supplier does not remove the rejected Goods within 7 Working Days of the date of the Warranty Claim, then Talley's may return the Defective Goods to the Supplier at the Supplier's cost.
7. The authorised representative's signing of a delivery acknowledgement or service completion acknowledgment receipt does not constitute acceptance of the Goods or Services by Talley's, and will not in any way affect the Supplier's liability under this clause 5.
8. Clauses 5(e) and 5(f) do not limit or negate any other rights or remedies that Talley's may have in law or under these Terms.

6. Price and Payment

1. The price stated in the Purchase Order is in New Zealand dollars exclusive of any GST ("Price").
2. Within 5 Working Days after the beginning of each month, the Supplier must issue to Talley's a valid GST invoice for the Goods or Services provided in the previous month. The GST invoice must quote the relevant Purchase Order number(s) and meet the requirements under the GST Act.
3. Subject to clause 6(d), Talley's will pay each correctly rendered invoice by or on the last Working Day of the month following the date of the invoice.
4. Talley's will have no obligation to pay any disputed amounts. If Talley's disputes any amount claimed in an invoice, Talley's will advise the Supplier in writing of the nature of the dispute, pay any undisputed portion, and withhold the disputed portion. The Supplier will use all reasonable endeavours to provide Talley's with all information required to verify the disputed amount. Disputes will be resolved in accordance with clause 14.
5. If any sum of money is recoverable from or payable by the Supplier to Talley's, that sum may be deducted from any sum due, or which at any time may become due, from Talley's to the Supplier.

7. Intellectual Property

1. The Supplier must inform Talley's if any intellectual property owned by a third party is used in the provision of the Goods or Services. The Supplier must ensure that Talley's has all the necessary rights and documentation to enjoy the full benefits of the Goods or Services.
2. The Supplier warrants to Talley's that Talley's ownership (where intended), possession, use, modification or resale of any Goods or Services supplied by the Supplier will not infringe any third party rights. The Supplier indemnifies Talley's against any liability, costs, fines, loss or damage arising from any breach of this warranty.
3. Talley's retains all rights, interests and title in its intellectual property. The Supplier acknowledges that it does not have any right, interest or title to Talley's intellectual property and will not challenge the validity of Talley's intellectual property or take any action prejudicial to it.
4. If any new intellectual property is developed or created during, or as the purpose of, any delivery of Goods or Services by the Supplier to Talley's, such intellectual property will be deemed to be owned by Talley's. If requested, the Supplier will waive any rights it may have and transfer every relevant proprietary interest or right to Talley's or its nominee.

8. Insurance

The Supplier will effect and maintain appropriate insurances in respect of its obligations under these Terms. The Supplier will provide evidence of such insurance to Talley's upon demand and, if requested, procure Talley's interest to be noted directly on such policy or policies. The taking out of insurance by the Supplier will not in any way limit or exclude its obligations to indemnify Talley's pursuant to clause 13.

9. Warranties

1. The Supplier warrants that the Goods and/or Services:
   1. Match the description (including any performance criteria) in the Purchase Order, and, where a sample was provided, correspond with that sample;
   2. Are delivered in compliance with all applicable requirements, Specifications and standards of Talley's;
   3. Are of merchantable quality and adhere to any relevant Specifications unless specified otherwise by Talley's;
   4. Are free from any defects, fault or damage and are fit for the purpose intended by Talley's;
   5. Are compatible with the other goods and services available from the Supplier;
   6. Are supplied using all diligence, care and skill and using sufficient appropriately trained, qualified, experienced and supervised persons;
   7. Satisfy the requirements of Talley's as notified to the Supplier; and
   8. Comply with all applicable legal, regulatory and industry standards and any quality assurance system approved or required by Talley's.
2. The Supplier further warrants that:
   1. It has the right to sell the Goods specified in the Purchase Order;
   2. The Goods will be free of any liens, security interests or other encumbrances; and
   3. It has all necessary permits, licences or consents to supply the Goods or perform the Services.
3. The warranties given under this clause 9 will be deemed to be repeated continually throughout the parties' relationship and will survive inspection, testing and acceptance of the Goods or Services by Talley's.
4. The Supplier will, to the extent possible, pass on to Talley's the benefit of any warranty or guarantee received from any other person in respect of Goods or Services supplied.

10. Product Recall

1. The Supplier will notify Talley's immediately if:
   1. The Supplier receives a notice of regulatory non-compliance or is the subject of any governmental or regulatory action which affects or may affect the Goods or the supply of the Goods; or
   2. The Supplier initiates a voluntary recall of the Goods.
2. If, for any reason, a recall of the Goods is required, all costs related to that recall will be borne by the Supplier.

11. Confidentiality

1. The Supplier acknowledges that from time to time it may have access to certain information relating to the business or operations of Talley's that is not generally known to the public, including customer lists, commercially sensitive methods and know-how, and trade secrets ("Confidential Information"). The Supplier agrees and undertakes that neither it nor its employees, agents and subcontractors will disclose any Confidential Information to any third party or use it for their own benefit or for the benefit of any other person, without the prior written consent of Talley's.
2. Disclosure and use of Confidential Information is permitted to the extent required by law or to the extent necessary to supply the Goods or perform the Services as specified in the Purchase Order.
3. Upon the request of Talley's, the Supplier will stop using and destroy or return to Talley's any Talley's property and/or information which it has in its possession.

12. Publicity

The Supplier shall not use its relationship with Talley's for means of publicity in any form without the express permission of Talley's.

13. Liability

1. To the extent permitted by law, the Supplier will indemnify, keep indemnified and hold harmless Talley's, its employees, agents and contractors (each, an "Indemnified Party") from and against all losses, damages, liabilities, claims, actions, proceedings, legal fees (on a solicitor-client basis) and costs of any kind arising from or in connection with:
   1. Any breach of these Terms by the Supplier;
   2. Any recall;
   3. Any claim made against Talley's under the Consumer Guarantees Act 1993 (to the extent that the claim is not the result of Talley's breach of that Act);
   4. Any damage to Talley's property or a third party's property or personal injury caused by the Supplier or its employees, agents or subcontractors;
   5. Any negligent or wrongful act or omission of the Supplier or any of its employees, agents or contractors in the course of or related to the performance of, or failure to perform, any obligations under these Terms; or
   6. Any fraud, dishonesty, misrepresentation or wilful default of the Supplier.
2. Under no circumstances will Talley's be liable to the Supplier for any loss of income or profits, special damage or injury of any kind, or any consequential or indirect loss or damage suffered by the Supplier or any other person.

14. Dispute Resolution

1. If a party believes that there is a dispute in relation to these Terms, it will first notify the other party in writing giving details of the dispute. The dispute will then be promptly referred to a senior representative of each party for resolution (who may use mediation to assist). Pending resolution of the dispute, both parties shall continue to perform all of their respective obligations under these Terms. If the dispute remains unresolved 20 Working Days after the meeting of senior representatives, the dispute shall be referred to the arbitration of a single arbitrator to be appointed by the parties or, failing agreement, by the President of the New Zealand Law Society. Such arbitration shall be carried out in accordance with the Arbitration Act 1996.
2. Nothing in these Terms prevents Talley's from taking immediate action for urgent interlocutory relief.

15. Termination and Suspension of Purchase Orders

1. Talley's may cancel or suspend a Purchase Order (or any part of a Purchase Order) if:
   1. The Supplier breaches any provision in any Purchase Order or these Terms;
   2. The Supplier has a receiver, liquidator, administrator, manager or mortgagee take possession of or be appointed with respect to all or any part of its business assets or undertaking;
   3. The Supplier makes an assignment for the benefit of creditors, or enters into any general arrangements or composition with or for the benefit of its creditors;
   4. The Supplier undergoes a direct or indirect change of control without the prior written consent of Talley's; or
   5. The Supplier is prevented from performing the Purchase Order for a period of 10 Working Days (whether consecutive or otherwise) due to a Force Majeure Event.
2. Termination or suspension of a Purchase Order is without prejudice to Talley's rights and obligations accrued up to and including the date of the termination or suspension.
3. In the event that a Purchase Order is fully or partially cancelled or suspended, and without prejudice to any other rights or remedies Talley's may have, the Supplier must reimburse Talley's for any costs incurred as a consequence of such cancellation or suspension, including storage costs and loss of profits.

16. Force Majeure

1. Non-performance by either party of any of its obligations under these Terms or a Purchase Order will be excused, without liability for non-performance, during the time and to the extent that performance is prevented, wholly or substantially, by a Force Majeure Event, provided that:
   1. The affected party gives the other party written notice within 1 Working Day after becoming aware of, or the likelihood of, the Force Majeure Event, and provides details of its nature, expected duration and effect;
   2. The affected party keeps the other party informed of any changes to the Force Majeure Event, including its cessation; and
   3. The affected party, at its own cost, uses reasonable endeavours to mitigate the effects of the Force Majeure Event and, where reasonably practicable, continues to perform its obligations under these Terms and the relevant Purchase Order.
2. Performance of any obligation affected by the Force Majeure Event will be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure Event.

17. Notices

1. Notices must be in writing and sent to the recipient at the addresses set out in the Purchase Order. If no address is specified, the party's registered office address will be used.
2. Notices are deemed delivered 10 Working Days after posting (if posted), upon receipt by an employee (if hand delivered), or upon confirmation of successful transmission (if sent by email). A notice received after 5pm on a Working Day or on a day that is not a Working Day will be considered to be received on the next Working Day.

18. General Provisions

1. Amendments: No amendment to these Terms is effective unless it is in writing and signed by both parties.
2. Relationship: Nothing within the Purchase Order or these Terms will create any relationship of employment, agency, partnership or joint venture between Talley's and the Supplier.
3. Assignment: The Supplier shall not novate, assign, transfer or subcontract any right or obligation arising out of these Terms or a Purchase Order without the prior written consent of Talley's.
4. Continuing liability: Notwithstanding any consent given by Talley's for an assignment, the Supplier will remain principally liable to Talley's and will not be relieved of any of its responsibilities under the Purchase Order or these Terms.
5. Express Rights: The exercise by a party of an express right set out in these Terms is without prejudice to any other rights, powers or remedies available to that party in contract, at law or in equity.
6. Governing Law: New Zealand law governs these Terms and all Purchase Orders between the parties. The United Nations Convention on Contracts for the International Sale of Goods is excluded.
7. Severability: In the event that any part or provision of these Terms is held to be invalid, illegal or unenforceable for any reason, such part or provision shall be deemed to be deleted and the remainder of these Terms shall continue in full force and effect.
8. Time: Stipulations as to time for performance by the Supplier in a Purchase Order are of the essence and essential terms of that Purchase Order. Stipulations as to time for performance by Talley's in a Purchase Order are not of the essence.
9. Waiver: A failure, delay or indulgence by any party in exercising any power or right will not operate as a waiver of that power or right.
10. Set-Off: If Talley's is owed money by the Supplier under or in respect of these Terms or a Purchase Order, or has incurred or can reasonably demonstrate that it will incur costs or expenses arising from a breach by the Supplier of its obligations, then the Supplier authorises Talley's to set-off the amount of such moneys, costs or expenses against any debt or liability of Talley's to the Supplier.
11. Precedence: If there is any conflict between a provision in these Terms and a provision in the Purchase Order, then the provision in the Purchase Order prevails to the extent of the inconsistency. In the event of any inconsistency between these Talley's Purchase Terms and Conditions and a Supplier's terms and conditions, these Talley's Purchase Terms and Conditions shall prevail.