Terms & Conditions

In these Terms and Conditions we have used we, us and our to refer to Bovonic Limited and you to refer to our customer. By ordering
Goods and/or Services from us you agree to these Terms.

1. ORDER PROCESS

1.1 You may request, and we may agree to provide the Goods and/or Services, in accordance with an executed Order Form. The Parties will work together to discuss and agree the terms of each Order Form. For the avoidance of doubt, no Order Form will be binding until fully executed by both parties.

1.2 Each Order Form will, once signed, be a separate contract incorporating these Terms. We will not be required to provide the Goods or Services without an Order Form duly signed for or on behalf of you.

2. DELIVERY

2.1 Unless we agree otherwise, delivery occurs at the time possession of the Goods passes to you (or a person nominated by you, e.g. a third-party carrier) from us.

2.2 If we have given you a time for collection or delivery of the Goods (or any part of them), such time is approximate only and is not deemed to be of the essence.

3. TITLE AND RISK

3.1 We will retain title to Goods we supply until they have been paid for in full and you have performed all your other obligations under these Terms.

3.2 Risk in all Goods passes to you when the Goods are delivered. If the Goods are purchased on credit, you will not sell, dispose or part with possession of the Goods or do anything else inconsistent with our ownership of the Goods, from collection/delivery until title in them passes to you upon payment to us in full.

4. PRICE

4.1 The price to be paid by you for the Goods and Services is as set out in the Order Form or, if not, as was notified by us to you prior to us accepting your order.

4.2 All prices are inclusive of GST but exclusive of other taxes and duties (if any), which will be paid by you in NZ dollars.

5. PAYMENT

5.1 You must pay for Goods and Services as per the payment terms set out in the Order Form. If the payment terms are not set out in the Order Form, you must pay for (a) Goods prior to delivery; and (b) Services on an annual basis commencing on the first Subsequent Term, payment being due in advance of commencement of each Subsequent Term, unless we decide otherwise.

5.2 We are under no obligation to supply Goods to you on credit. If we grant you credit for the purchase of Goods, you agree to pay our invoices on or prior to the due date for payment indicated on the Order Form or as otherwise notified by us.

5.3 We may require you to pay a non-refundable deposit, being an advanced payment of the price of the Goods, before we supply you with the Goods.

5.4 You agree to give any securities as we may from time to time require, in the form required by us, and to comply with all of your obligations under those securities.

5.5 We may notify you at any time that we are going to stop supplying Goods or Services to you on credit. This will be without prejudice to your obligation to pay amounts owing.

5.6 All payments will be made without set-off or deduction. Receipt of a bill of exchange, or other negotiable instrument will not constitute payment and you remain liable for payment until payment is received by us.

5.7 We may apportion payments to outstanding accounts as we see fit.

6. DEFAULT

6.1 You will be in Default if:
(a) you fail to pay an amount due under these Terms by the due date for payment; or
(b) you commit a breach of any of your other obligations under these Terms, the Security or the terms of any other contract you have entered into, or enter into in the future, with us or one of our related entities; or
(c) you become insolvent, are wound up, have a receiver appointed, enter into any composition or arrangement with your creditors, do any act which would render you liable to be placed in liquidation or have a receiver appointed over your property, commit an act of bankruptcy, cease to be of full legal capacity, or die;
(d) Goods that we have retained title to are at risk; or
(e) an event or a series of events (whether related or not) occurs which, in our opinion, may cause a material adverse change in your ability to meet your obligations to us.

6.2 If you are in Default then we may, at our option, do any one or more of the following:
(a) suspend or terminate the Services;
(b) charge you default interest at 12% per annum on any late payments calculated on a daily basis from the due date until the date payment is received;
(c) require you to remedy the default in the manner and within a period that we tell you;
(d) require you to pay to us all amounts you owe us immediately;
(e) suspend or terminate your account with us;
(f) enforce security interests created by these Terms;
(g) exercise any rights that we have under these Terms or that are available to us at law.

6.3 We may suspend or terminate your account with us at any time in our sole discretion. If your account is terminated, you must immediately pay us any amount you owe us. Termination will not affect any of our rights that have arisen before termination.

7. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)

7.1 Clause 3.1 creates a security interest in Goods we supply to you.

7.2 You will not grant any other security interest or any lien over Goods that we have a security interest in.

7.3 At our request you will promptly sign any documents and do anything else required by us to ensure our security interest constitutes a first ranking perfected security interest in the Goods.

7.4 We may at any time enter your premises and properties to uplift Goods that we have a security interest in.

7.5 If Goods that we have a security interest in are processed, included or dealt with in any way causing them to become accessions, processed or commingled Goods, our security interest will continue in the whole in which they are included. You will not grant any other security interest or any lien in either the Goods or in the whole.

7.6 You waive any rights you may have under sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, and 133 of the PPSA.

7.7 You waive your right to receive a copy of any verification statement (as that term is defined in the PPSA).

7.8 You will give us prior written notice of any proposed change of your name or address.

8. WARRANTIES

8.1 We warrant that all Services will be performed with all reasonable care, skill and diligence in accordance with generally recognised practices and standards.

8.2 The Goods are supplied on an “as is” basis. Other than as expressly provided for in these Terms, we exclude all such imposed statutory or otherwise implied warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.

8.3 Where you acquire Goods and/or Services from us for the purposes of a business:
(a) the parties acknowledge and agree that:
(i) you are acquiring the Goods and/or Services covered by these Terms for the purposes of a business in terms of sections 2 and 43(2) of the Consumer
Guarantees Act 1993;
(ii) the Goods and/or Services are both supplied and acquired in trade for the purposes of the Fair Trading Act 1986 and the parties agree to contract out of sections 9 (Misleading and deceptive conduct generally), 12A (Unsubstantiated representations), and 13 (False or misleading representations); and
(b) you agree that all warranties, conditions, and other terms implied by the Consumer Guarantees Act 1993 or sections 9, 12A, and 13 of the Fair Trading Act 1986 are excluded from these Terms to the fullest extent permitted by law and the parties further acknowledge and agree that it is fair and reasonable that the parties are bound by this clause.

9. LIMITATION OF LIABILITY

9.1 To the maximum extent permitted by law, we will not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from Goods or the Services provided by us to you.

9.2 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these terms or for any other reason, such liability is limited to the greater of: (a) the amount paid by you for the Goods and Services within the last 12 month period; or (b) if applicable, the insurance proceeds recoverable, and actually recovered, by us in respect of that liability.

10. RETURNS AND CLAIMS

10.1 If Goods are returned by you, or if you make a claim in writing to us in relation to Goods provided, we may, in our discretion, repair or replace the Goods, or refund the price of those Goods to you, provided that:
(a) the Goods must be returned or the claim must be made in writing to us within 2 calendar month(s) of delivery; and
(b) you must supply the date and number of any invoice relating to the Goods; and
(c) we must be given a reasonable opportunity to inspect the Goods.

11. TERM AND TERMINATION

11.1 These Terms are effective from the Effective Date and will remain in force until the sooner of the end of the Service Term specified in the Order Form or Subsequent Term or termination of these Terms in accordance with clauses 11.2
or 11.3.

11.2 These Terms will automatically renew for a period equivalent to the Service Term (Subsequent Term) on expiry of the Service Term, and thereafter on expiry of each Subsequent Term unless you provide us with written notice that you wish to terminate these Terms within 90 days prior to the end of the Service Term or a Subsequent Term (as the case may be).

11.3 Either party may terminate these Terms if: (i) the other party is in material breach of the Terms and fails to cure such breach within thirty (30) days after receipt of written notice requiring it to make such rectification or such breach is not capable of rectification; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and which proceedings are not dismissed within thirty (30) days (unless a Party is prevented from terminating due to the provisions of applicable law).

11.4 Upon termination of the Terms, we will immediately cease providing the Services to you and all unpaid fees owing to us by you will become immediately due and payable.

12. PRIVACY OF INFORMATION

12.1 You authorise us:
(a) to collect, retain and use information about you from any person for the purpose of assessing your creditworthiness;
(b) to disclose information about you:
(i) to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us;
(ii) to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms.

12.2 We may use and disclose any data on the Goods or Services, including data relating to the provision of Goods or Services to you, fir data analytics or sale to
third parties provided that where that data contains personal information, such personal information will be fully anonymised and aggregated (so that it is no longer personal information) to such use or disclosure.

13. INTELLECTUAL PROPERTY

13.1 All intellectual property (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures and calculations) which arises out of or in the course of the production of the Goods or the provision of the Services are our exclusive property, or the exclusive property of any third party contractor engaged by us to undertake the provision of Goods and/or Services, unless otherwise agreed in writing.

13.2 We will retain exclusive worldwide ownership at all times of our artistic styles, methods of working, techniques, ideas, skills and know-how.

13.3 You must not attribute the Goods or Services to anyone other than us or remove any our trade marks, signatures, logos or similar from the Goods.

14. FEEDBACK AND OTHER INPUT

14.1 You may provide suggestions, ideas and/or feedback (collectively referred to as Feedback) to us or in the use of the Goods and Services. You agree that we will be free to use, irrevocably, in perpetuity and for any purpose, all Feedback provided to us by you and that all right, title and interest in the Feedback is assigned to us. The foregoing rights are made without any duty to account to you for the use of such Feedback.

15. NOTICES

15.1 Any notice may be given by phone, in person, posted, or sent by email to you or where you are a company, to any of your directors.

16. CONFIDENTIALITY

16.1 You will at all times treat as confidential all non-public information and material received from us and will not publish, release, or disclose the same without our prior written consent. For clarity, confidential information includes any new Intellectual Property and prices.

17. COSTS

17.1 You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms.

18. CREDIT INFORMATION

18.1 You consent to us, or any financier or credit-rating agency, making enquiries of and obtaining any information about your financial standing and credit worthiness.

19. JURISDICTION

19.1 These Terms are governed by and construed according to the laws of New Zealand and, subject to clause 20, the parties submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these Terms.

20. DISPUTES

20.1 Where any dispute arises in connection with these Terms the complaining party must promptly give full written particulars of the dispute to the defaulting party. The parties must then endeavour to meet and resolve the dispute in good faith.

20.2 Where any dispute remains unresolved within 20 working days of written particulars being given, either party is free to seek resolution of the dispute by whatever means available at law.

20.3 This clause 20 does not apply to:
(a) any dispute arising in connection with any attempted renegotiation of these Terms; or
(b) an application by either party for urgent interlocutory relief.

20.4 Pending resolution of any dispute the parties will perform these Terms in all respects including performance of the matter which is the subject of dispute but a payment due may be withheld if it is in dispute.

21. FORCE MAJEURE

21.1 We will not be liable for any failure or delay in complying with any obligation imposed on us under these Terms if the failure or delay arises directly or indirectly from a cause reasonably beyond our control.

22. SURVIVAL

22.1 This clause 22 and clauses 3, 5, 8, 9, 10.1(c), 13, 16, 17, 19, 20 and 24 and any other provision which by its nature is intended to survive the termination or expiration of these Terms will survive the termination or expiration of these Terms or completion of the Work.

23. GENERAL

23.1 These Terms supersede and cancel any earlier representations, warranties, understandings and agreements (whether oral or written), and together with your Order Form constitute the entire agreement between us and you relating to their subject.

23.2 You may only assign, sell, or otherwise dispose of any right or obligation under these Terms if we consent in writing first.

23.3 If you have entered into these Terms as the trustee of a trust and you have no right to or interest in any of the assets of the trust except in your capacity as trustee of the trust, your liability will be limited to the value of the assets of the trust which now or in the future are (or, but for your wilful neglect or default, would be) in the hands of the trustees for the time being of the trust. This clause does not limit any liability you have to us as a personal guarantor.

23.4 No failure or delay by us to exercise (in whole or in part) any right, power or remedy under these Terms will operate as a waiver of that right, power or remedy.

23.5 We reserve the right to amend or replace these Terms from time to time. Amendments will be effective 1 month following you being notified of the amendment. Such amendment or replacement will be deemed accepted unless you provide us written notice that you reject the amendment/replacement Terms. In the case of rejection, the Terms will continue under their original provisions and the amendment will become effective at the start of the next Subsequent Term unless the Terms are terminated by you in accordance with clause 11.2 or 11.3.

24. DEFINITIONS

24.1 In these Terms unless the context otherwise requires:

• Default has the meaning set out in clause 6.1.
• Effective Date means the date of the Order Form is fully executed by the parties.
• Goods includes any products that we supply.
• Intellectual Property means all intellectual property rights including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, procedures, calculations and all other statutory and common law rights and interests.
• Security means all existing and future security held by us that secures your obligations under these Terms.
• Services means the services described in an Order Form or as otherwise agreed to be us in writing from time to time.
• Website means www.bovonic.com.

24.2 The rule of construction known as the contra proferentem rule does not apply to these Terms.

24.3 Words referring to the singular include the plural and vice versa.

24.4 Any reference to a party includes:
(a) that party’s executors, administrators, or permitted assigns; or
(b) if a company, limited partnership, or any other body corporate, its successors or permitted assigns or both.

24.5 Clause headings are for reference only.

24.6 References to clauses are references to clauses of this agreement.

24.7 References to money will be New Zealand currency, unless specified otherwise.

24.8 Expressions referring to writing will be construed as including references to words printed, typewritten or otherwise visibly represented, copied or reproduced (including by fax or email).

24.9 Reference to statutory provisions will be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time.