Terms and Conditions of Sale

AGREEMENT
1. All quotations, deliveries, sales and supply of Products made by Grounded are subject to these Terms, together with any additional terms and conditions expressly agreed in writing by Grounded and the Customer in a Sales Order (the Sales Orders and these Terms being the “Agreement”).
2. By submitting a request for the supply of Products and paying the deposit in relation to a Sales Order the Customer is deemed to have agreed to, and warrants that it is authorised and entitled to bind the Customer to, this Agreement.
3. In the event of inconsistency, the terms and conditions of any Sales Order shall have priority, followed by these Terms.
4. Grounded reserves the right to review and make changes to these Terms at any time. Any changes that we make will take effect on and from the date that we post an updated version of the Terms on our website and will apply to any Sales Orders after that date.
ORDERS
1. Where Grounded receives a request from the Customer for the supply of any Products, Grounded will, where necessary, discuss and agree the specific terms of that order and will confirm the details of the Customer’s order, including the Price, payment and delivery terms, Product Specifications and the Production Variation Allowance in a Sales Order.
2. Any cancellation of, or variation to, a Sales Order by the Customer after it has been issued by Grounded in accordance with clause 2.1 will be permitted at the sole discretion of Grounded, and may be subject to additional terms (including, for the avoidance of doubt, any additional reasonable costs payable by the Customer) as specified by Grounded.
PRICING
1. In respect of each Sales Order, the Customer shall pay the Price together with all applicable taxes or duties relating to a Sales Order in accordance with clause 3.2.
2. Unless otherwise agreed in writing by Grounded in a Sales Order or related Invoice in accordance with clause 5.2, all Prices are exclusive of, and the Customer is liable to pay, GST and any other taxes or duties applicable to the supply of the Products and which may be imposed by any governmental authority in the place of delivery.
3. Where the Customer is liable for any delivery costs under the terms of a Sales Order, any delivery costs quoted by Grounded in a Sales Order are an estimate only. Upon request, Grounded will provide a final quote for the costs of shipping once the Products are ready and final packing details, including weight and cubic metres, are available.
PAYMENT
1. Payment terms will be as specified in a Sales Order or Invoice.
2. All payment bank transaction fees or charges shall be payable by the Customer.
3. Subject to clause 4.5:
  1. all amounts stated in an Invoice must be paid in full, without set-off or deduction, in accordance with the timeframes specified in a Sales Order;
  2. the Customer agrees to pay all costs of collection, including legal costs reasonably incurred by Grounded in relation to the collection of any amounts owing and unpaid.
4. Grounded may, in its discretion, allocate any payment received from the Customer towards any Invoice that Grounded determines and may do so at the time of receipt or at any time afterwards.
5. Where the Customer reasonably disputes an amount specified in an Invoice, the Customer will not be obliged to pay the disputed amount while the dispute remains unresolved. However, the Customer must pay the undisputed portion of the invoiced amount (if any) in accordance with clause 4.1.
DELIVERY AND RISK
1. The Customer acknowledges and agrees that any delivery dates specified in a Sales Order are approximate only, and Grounded is not liable for any claims or losses arising from its failure to meet any estimated delivery date.
2. Delivery shall be in accordance with the specific Incoterms stated in the applicable Sales Order for the Product.
3. Subject to clause 5.5, risk of any loss, damage or deterioration of or to the Products passes to the Customer on delivery, notwithstanding that title to such Products may or may not have passed to the Customer in accordance with clause 6.
4. Grounded may store Product for and on behalf of a Customer (at the Customer’s expense) as agreed and subject to any terms set out in a Sales Order. Where Grounded has agreed to deliver the Products and the Customer fails to approve all applicable shipping details (including without limitation, shipping address, contact person(s), and shipping costs) within two business days of Grounded giving the Customer notice that the Products are ready for shipping, the Products shall be deemed to have been delivered to Customer. Grounded may store (or arrange for the storage of) the Products at the Customer’s risk and expense until the Customer takes delivery.
5. The Customer is responsible for inspecting the Products on delivery. The Customer must notify Grounded in writing as soon as possible and in any event:
  1. within seven days of delivery of any shortage or excess in quantity of Product delivered that exceeds the Product Variation Allowance; or
  2. within the timeframe specified in clause 7.4, if the Customer considers that the Product does not meet the Product Specifications.
  If the Customer does not provide notification within the time periods specified above, it will be deemed to have accepted the Product delivered.
6. Grounded will record the finalised quantities included in each consignment of Product in the final Invoice issued to the Customer before delivery. The quantity of any consignment of Products as recorded by Grounded shall be conclusive evidence of the quantity received by the Customer unless the Customer can provide conclusive evidence proving the contrary.
7. The Customer acknowledges and agrees that the quantity of Products delivered may be more or less than the quantity ordered in the Sales Order, provided that the surplus or shortfall is within the Product Variation Allowance. The Customer shall not be entitled to reject the Products or any part of them by reason of any surplus or shortfall that is within the Product Variation Allowance and shall pay for such Products at the prorated contract rate.
8. Where the quantity of Product delivered exceeds the quantity ordered by more than the Product Variation Allowance, the Customer will not be required to pay for that Product which is in excess of the permitted Product Variation Allowance. If there is a shortfall in the quantity of Product delivered in an amount that exceeds the Product Variation Allowance, Grounded will reproduce and supply replacement Product to meet the amount by which the shortfall exceeds the Product Variation Allowance.
9. The Customer acknowledges and agrees that the Product may be delivered by separate instalments. Where Product is delivered in instalments, unless otherwise specified in the Sales Order, the Product Variation Allowance and Acceptable Quality Limit will be calculated by reference to the quantity delivered in each instalment and not in respect of the total Product volumes specified in the Sales Order. Any shortfall or excess of Product delivered under one instalment can be remedied by Grounded in the next relevant instalment of the same Product.
TITLE
1. All Product remains the property of Grounded until Grounded receives payment in full of all moneys owing to Grounded under the Agreement.
2. Where title to the Products remains with Grounded:
  1. Grounded may pursue an action against the Customer for the Price of the Products for which payment has not been made, even though property in and title to the Products remains with Grounded; and
  2. Grounded authorises the Customer to process, intermix, sell or otherwise distribute the Products in the ordinary course of the Customer’s business, provided that the proceeds of the sales of such Products (or end product where the Products have been intermixed with other products) shall be received and held by the Customer on trust for Grounded to the extent of all amounts owing by the Customer to Grounded under this Agreement or any other Agreement entered into between the Customer and Grounded from time to time. This authority will automatically be withdrawn if a Default (as defined in clause 13.1) occurs or upon notice in writing from Grounded.
3. Where permitted under applicable law, in order to secure the Customer’s obligations under the Agreement, the Customer grants Grounded a security interest (as that term may be defined in New Zealand or Australian personal property securities legislation, or any equivalent under applicable legislation) in all Products previously supplied or which will be supplied by Grounded to the Customer under the Agreement and all proceeds arising from such Products
4. The Customer agrees to execute such documents and provide information and cooperate as may reasonably be required by Grounded so that Grounded can perfect or register the security interest granted under clause 6.3. The Customer shall also notify Grounded immediately of any material change in its business practices which would result in a change of the nature of proceeds derived from the sales of any Products.
5. If required by Grounded the Customer will store the Products supplied by Grounded separately and in a way that enables them to be identified as having been supplied by Grounded.
LIMITED WARRANTY AND DEFECTIVE PRODUCTS
1. Subject to clause 7.9, Grounded warrants to the Customer that the Products supplied to Customer under the Agreement will comply in all material respects with the Product Specifications. For the purposes of this clause, Products will be deemed not to comply with the Product Specifications where the amount of any Product delivered that fails to comply with the Product Specifications exceeds the Acceptable Quality Limit.
2. Subject to clause 7.1, to the maximum extent permitted by law, Grounded expressly excludes all warranties, descriptions, representations or conditions, whether express or implied whether under statute or otherwise, in respect of the Products. The Customer acknowledges and agrees that it is in trade and is acquiring the Products for the purpose of a business and that all consumer warranties, guarantees, representations or conditions implied or imposed by law will not apply to the Products.
3. In some instances, Grounded outsources production to third party manufacturers. Current warranties provided by the manufacturer of the particular Products may apply. We will not be bound by, or be responsible for, any term, condition, representation or warranty other than that which is expressly given by the manufacturer of the particular Product.
4. The Customer must notify Grounded in writing within 90 days of delivery of any non-conformity with the Product Specifications (a “Defect Notice”) where the quantity of non-conforming Product exceeds the Acceptable Quality Limit. In accordance with clause 5.9, where the Product is delivered by instalments, for the purposes of this clause 7 the Acceptable Quality Limit will be calculated by reference to the quantity delivered in each instalment. Where any instalment of Product contains non-conforming Product exceeding the Acceptable Quality Limit, Grounded may increase the quantity supplied in the next relevant instalment of the same Product to remedy that non-conformity.
5. If the Customer does not issue a Defect Notice within the timeframe in clause 7.4, it will be deemed to have accepted the Products delivered as conforming with the warranty in clause 7.1 and any applicable statutory or manufacturer warranty or guarantee.
6. Where the Customer gives a Defect Notice under clause 7.4, the Customer must, at Grounded’s option:
  1. afford Grounded or a third party appointed by Grounded an opportunity to inspect and test the Products on a day and at a time determined by Grounded provided that such inspection is conducted within usual business hours and Grounded has given not less than two business days’ written notice of the intended inspection; or
  2. provide evidence upon request of the alleged non-conformity.
7. Where Grounded agrees in writing that the Customer is entitled to reject delivered Products (the “Defective Products”), the Customer must return Defective Products to a receiving point designated by Grounded. Grounded’s liability shall be limited to, at its option, to refunding, replacing or providing a discount in respect of, the Products affected and paying for all shipping charges for returns and replacements of Defective Products.
8. If Grounded determines (acting reasonably) that the Product meets the Product Specifications or the Acceptable Quality Limit has not been breached, then the Customer will be liable for and/or will reimburse Grounded for any reasonable costs incurred by Grounded in considering a Defect Notice and/or inspecting the Products.
9. The warranty in clause 7.1 does not extend to:
  1. any defect or non-conformity that arises as a direct result of any act or omission by the Customer, including failure to comply with instructions from Grounded as to the storage, handling, transportation, use or operation of the Product;
  2. any Product that has been altered or repaired without the written consent of Grounded;
  3. any damage due to a Force Majeure Event (as defined in clause 9.1); or
  4. any combination of the Product with another product in a manner that is not authorised by Grounded or consistent with the Product Specifications.
PRODUCT RECALL
1. In the event that it is necessary to recall or withdraw the Products whether due to an order from relevant competent authorities or the reasonable commercial decision of Grounded for safety, quality or technical reasons (including a failure or suspected failure of the Products to meet the Specifications), Grounded shall give the Customer as much advance notice in writing as possible of such recall or withdrawal and such notice shall include the reasons for such recall or withdrawal.
2. The Customer shall provide Grounded with all reasonable co-operation and assistance as Grounded may require in relation to the recall.
LIMITATION OF LIABILITY
1. Grounded shall not be liable for failure to comply with the Agreement if such failure arises as a result of any accident, machinery or equipment breakdown, industrial action, act of God, material shortages, fires, floods, war, terrorism, public disturbances or riots, government allocations, governmental laws, regulations, or other actions by a government or any agency thereof, acts of God, pandemics or national or local health emergency, or any circumstances beyond its control (each, a “Force Majeure Event”).
2. Grounded’s maximum liability under or in connection with the Agreement and/or any Products (whether in contract, tort (including negligence), statute or otherwise) shall be limited to the value of the Sales Order out of which any such liability arose.
3. Grounded will not be liable (whether in contract, tort (including negligence), statute or otherwise) for any loss of profits or revenue or any indirect, consequential or special loss or damage of any kind.
4. For the avoidance of doubt, Grounded shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of any action taken by or on behalf of Grounded in accordance with clause 6.7.
5. The Customer indemnifies Grounded in respect of all loss, liability, costs, expenses, damage or injury suffered or incurred by Grounded arising as a direct result of any act or omission by the Customer or any of the Customer’s officers, employees, contractors, agents or other representatives in breach of the terms of the Agreement or the enforcement of Grounded’s rights under the Agreement.
TECHNICAL ADVICE AND ARTWORK
1. Grounded shall have no responsibility or liability for any technical advice or information offered or given in connection with the use of any Products other than where expressly incorporated and reflected in the Product Specifications.
2. Subject to and without limiting clause 11, the Customer is responsible for approving a digital proof of the artwork and the design of the Product, including but not limited to any content, information or logo added to the Product by Grounded or any third party at the Customer’s request (the “Customer Artwork”), and Grounded will have no liability for any Customer Artwork, whether or not based on technical advice or information provided by Grounded to the Customer, except to the extent that the Customer Artwork is expressly incorporated in the Product Specifications.
CERTIFICATION MARKS
1. The Customer acknowledges and agrees that Products may or may not be delivered to Customer preprinted with a third party certification mark or logo granted to Grounded indicating that the Product is certified pursuant to a third party certification program (such mark or logo, the “Certification Mark”).
2. If the Product is delivered by Grounded preprinted with a Certification Mark, the Customer shall not, in any manner, modify, enhance, obscure or alter the Certification Mark without the express prior written consent of Grounded.
3. If the Product is not delivered by Grounded preprinted with a Certification Mark, Customer shall not use any other third party certification mark on or in connection with the Product or otherwise make out that the Product has any third party certification without the express prior written consent of Grounded.
CONFIDENTIAL INFORMATION AND PROPERTY RIGHTS
1. The information contained in and the existence of the Agreement, and all information regarding Grounded and/or its Products (including the Product Specifications), technology and documentation, and any other related technical or business information (“Confidential Information”) is confidential.
2. Except as otherwise expressly provided in the Agreement and subject to clause 12.3, nothing in the Agreement shall grant the Customer any right, title or interest in or to any Products or any intellectual property rights or interests contained in or relating to the Products or which is otherwise owned by Grounded or any third party. All rights, title, and interest, including any intellectual property rights embodied in or relating to the Products shall remain the property of Grounded or the relevant third party.
3. The rights, title and interest in any Customer Artwork supplied by the Customer pursuant to clause 9.2 remains the property of the Customer. The Customer warrants that it is the owner of the Customer Artwork and that the use of the Customer Artwork will not infringe the intellectual property rights of any third party.
4. The Customer may not use, duplicate, reproduce, or reverse engineer any part of the Products or disclose any Confidential Information other than in accordance with the Agreement, as permitted in writing by Grounded or as strictly required by law.
TERMINATION
1. Either Grounded or the Customer may terminate the Agreement with immediate effect on giving written notice to the other if that other party:
  1. breaches a term of the Agreement and that breach cannot be remedied or, where such breach can be remedied, where the breaching party fails to remedy the breach within 5 days of receiving written notice of the breach from the other party; or
  2. becomes bankrupt, goes into liquidation or has a receiver, statutory manager or administrator appointed over any of its assets, becomes insolvent, ceases to carry on its business or makes any composition or arrangement with creditors,
2. Termination of this Agreement shall automatically terminate all Sales Orders in existence as at the date of termination unless otherwise specified in the notice of termination. In the event that Grounded terminates the Agreement, all amounts payable in respect of Product delivered up to the date of termination will be immediately due and payable.
3. Termination of the Agreement shall not affect clauses 7, 9, 12 or any other clauses which are intended (specifically or by their nature) to survive termination.
DISPUTES
1. Where a dispute arises between Grounded and the Customer in respect of the Agreement or the supply of Products, then, as a first step, the parties must use best endeavours to resolve the dispute in good faith.
2. Where the dispute has not been resolved within 4 weeks of the dispute first arising, the dispute may be referred by either party to arbitration. Such arbitration shall be conducted by a single arbiter appointed by mutual agreement of the Customer and Grounded or, failing agreement, by two arbiters (one appointed by each of the Customer and Grounded), with such arbitration to be conducted in accordance with the Arbitration Act 1996 (NZ).
GENERAL
1. The Agreement constitutes the entire agreement of Grounded and the Customer in respect of the supply of Products specified in a particular Sales Order and supersedes and extinguishes all earlier negotiations, understandings and agreements (whether written or oral) between Grounded and the Customer in respect of that Product order.
2. The Customer is not permitted to assign any of its rights or obligations under the Agreement without the prior written consent of Grounded. A change in the Customer’s effective ownership or control will be deemed an assignment for the purposes of this clause. Grounded may assign, transfer, licence or subcontract any and all of its rights and obligations under the Agreement (including any Customer indebtedness) by notice to the Customer but without requiring the Customer’s consent. Each of Grounded’s assignees and transferees will have the same rights and remedies against the Customer as Grounded has under the Agreement.
3. If any provision of this Agreement is found to be invalid, illegal or unenforceable, then such provision shall be deemed to be amended to the extent required to cure such invalidity, illegality or unenforceability and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
4. No waiver of any breach of, or failure to enforce any provision of, the Agreement at any time by either party shall in any way limit the right of such party thereafter to enforce and compel strict compliance with the provisions of the Agreement.
5. The Agreement is governed by, and is to be construed in accordance with, the laws of New Zealand and each party submits to the non-exclusive jurisdiction of the courts of New Zealand.
DEFINITIONS
1. “Acceptable Quality Limit” means 4% of the total Product specified in a Sales Order or such other percentage as may be specified in the relevant Sales Order.
2. “Customer” means the person named as the Customer in any Sales Order or in any related Invoice and shall include any person acting on behalf of and with the authority of the Customer, or any of its successors, assigns or administrators.
3. “Default” has the meaning given in clause 13.1.
4. “Grounded” or “we”, “us” or “our” means Grounded Packaging Limited or Grounded Packaging Pty Limited (as the case may be) and/or any agent, officer, employee or subcontractor of Grounded, together with any of our successors or assigns.
5. “Invoice” means a valid tax invoice issued by Grounded to a Customer in respect of a Sales Order and the supply of any Products.
6. “Price” means the price of the relevant Product as set out in the Sales Order or as otherwise agreed in writing by the parties and recorded in an Invoice.
7. “Product Specifications” means the specifications for the Product including design details, intended Product uses and other matters, as agreed in writing between the Customer and Grounded, and as set out in a Sales Order.
8. “Product Variation Allowance” means 20% of the total Product volume specified in a Sales Order or such other percentage as may be specified in the relevant Sales Order.
9. “Products” means the specific products to be provided by Grounded to the Customer as detailed in the applicable Sales Order.
10. “Sales Order” means the confirmation of a Customer’s request for the supply of Products by Grounded, issued by Grounded in accordance with clause 3.1.
11. “Terms” means these Terms and Conditions of Sale, as amended from time to time.

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