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Sigma Healthcare

Sigma’s obligations

  1. Sigma shall use reasonable commercial efforts to:
    1. market, distribute and sell the Products in the nominated Territory; and
    1. maintain sufficient stock of the Products, sufficient facilities and adequately trained Personnel, to meet demand of Sigma’s customers in the Territory and to fulfil its obligations under this Agreement. 

Supplier’s obligations

  1. The Supplier:
    1. upon reasonable request of Sigma, shall provide timely and accurate reporting and information to Sigma regarding the Products, including identifying and presenting to Sigma opportunities for operational improvements during the Term;
    1. shall provide Sigma with, in English:
      1. all marketing, promotional, imagery and other Documentation about the Products that the Supplier typically provides distributors of its Products; and
      1. such other adequate and detailed Documentation reasonably requested by Sigma to distribute, market, promote and on-sell the Products;
    1. must ensure all Documentation provided under this clause complies with all applicable laws, statutes, regulations, mandatory standards or requirements in force from time to time, including without limitation where applicable the Medicines Act 1981 (NZ), applicable Ministry of Primary Industries regulations, the Fair Trading Act 1986 (NZ), the Hazardous Substances and New Organisms Act 1996 (NZ), and any industry standards to which the Supplier is subject; and
    1. hereby grants to Sigma a non-exclusive, sub-licensable, royalty-free license to use, reproduce or transmit such Documentation during the Term for the purpose of Sigma marketing, selling, and distributing the Products in accordance with this Agreement (provided such Documentation is not modified and proprietary notices are not removed).

Contract management

  1. The parties shall each designate a Representative as the principal point of contact for the purposes of this Agreement.
    1. The Representative of each party, and such other persons as may be considered by either of them to be relevant, shall meet every three months or as otherwise mutually agreed to discuss the performance of this Agreement and any other matters deemed relevant by the Representatives.

which will take precedence in the order listed above with the first taking priority and so on.

  • The Supplier acknowledges and agrees that Sigma has not made any commitment to purchase and is not bound to any minimum order or purchase requirement in relation to the Products under this Agreement.  Only Orders arising under individual contracts in accordance with clause 4.3 shall be binding on the parties. 
  • Delivery

In full on time

  • If the Supplier accepts an Order, the Supplier must deliver the Products specified in that Order in full to the Site by the applicable Delivery Date.
    • The Supplier undertakes not to interrupt, delay, abandon or withhold delivery of Products, other than where a Force Majeure Event occurs, including a dispute between the parties.  Any breach of this clause may cause Sigma to breach or otherwise suffer Loss under other arrangements it has with third parties for the supply of Products.
    • If Late Delivery occurs, Sigma may (without limiting any other right Sigma may have), take any one or more of the following actions:
      • subject to clause 5.5, allow the Supplier to supply the affected Products as a ‘backorder’ under a later delivery date; and/or
      • if Sigma has notified the Supplier of the Late Delivery and the Supplier has confirmed that the delivery is not imminent, cancel the Order for the affected Products either in whole or in part, in which case the Supplier must promptly refund to Sigma any amount paid in respect of the Products which are the subject of the cancellation.
    • If Sigma has permitted the Supplier to fulfil an Order as a ‘backorder’ under clause 5.4(a), then:
      • the Supplier must update the Supply Chain Planner on a weekly or other agreed regular basis as to the anticipated delivery date of the backorder;
      • the Supplier must not arrange for delivery of the backorder unless the Supply Chain Planner has approved the revised delivery date of the backorder; and
      • Sigma may cancel the backorder at any time prior to the later of: (1) notifying the Supplier that it approves the revised backorder delivery date, or (2) the Products being despatched by the Supplier. If Sigma cancels the backorder, the Supplier must promptly refund Sigma any amount paid in respect of the Products the subject of the backorder.

Delivery requirements

  • The Supplier must comply with all applicable New Zealand and local shipping, road and rail transport laws and regulations in delivering the Products (and is responsible for obtaining all necessary approvals, consents and permits for delivery of the Products and supplying copies of such approvals, consents and permits to Sigma upon request).
    • The Supplier must comply with all delivery requirements outlined in this Agreement and such other reasonable delivery requirements as advised by Sigma from time to time.
    • The Supplier must ensure that all deliveries of Products are:
      • clearly labelled with the full address of the Site as shown on the relevant Order; and
      • accompanied by a delivery docket and such other Documentation as reasonably required by Sigma and specified in the Order or otherwise notified from time-to-time.
    • If the Supplier attempts to deliver, or delivers, to Sigma:
      • a delivery which does not meet the requirements specified in clause 5.8;
      • a quantity of Products exceeding the quantity of Products specified in the Order;
      • any Product which has less than 9 months remaining shelf-life, where the delivery of that Product as short-dated stock has not been approved in advance by Sigma; and/or
      • any Product with a broken or damaged seal and/or packaging, or which shows signs of actual, suspected or potential tampering or contamination;
  • then the affected Products shall not be taken as delivered to the control of Sigma and the Supplier must promptly collect such Products at its own risk and expense.
  • Risk and title
    • Subject to clause 5.9, the Supplier bears all risk of Loss to the Products until the Products have been delivered into the control of Sigma at the Site. If Sigma rejects any Products under clause 8, all risk of Loss in those Products will revert to the Supplier immediately upon Sigma giving notice to the Supplier of the rejection.
    • As between the parties, title to the Products passes to Sigma on the earliest of:
      • payment by Sigma for it (or relevant part of it); and
      • sale of the Products by Sigma to Sigma’s customers.
    • At each delivery of the Products under this Agreement, the Supplier warrants that:
      • it is the owner of the Products free from any liens, charges and encumbrances and provides the Products on that basis; and
      • Sigma will be entitled to clear, complete and quiet possession of the Products and any Documentation.
  • Quality of the Products

Technical information

Quality warranties

  • The Supplier warrants that the Products:
    • match all descriptions, specifications (including any technical or performance specifications) and quality, safety and efficacy standards set out in the Order or otherwise represented by the Supplier; 
    • match any samples for those Products given by the Supplier to Sigma; and
    • have been manufactured, packaged, labelled and delivered in accordance with, and meet the requirements and standards specified in, all applicable laws, statutes, regulations, mandatory standards or requirements in force from time to time, and any standards otherwise represented by the Supplier, including without limitation:
      • Products that are classified by Standards New Zealand will be accredited to the relevant standard and carry the current Standards New Zealand mark or watermark license number;
      • Products which are regulated under the Medicines Act 1981 (NZ), Food Act 2014 (NZ), applicable Ministry of Primary Industries regulations, the Fair Trading Act 1986 (NZ), the Hazardous Substances and New Organisms Act 1996 (NZ) and relevant Environmental Protection Authority Standards, (or similar or substitute mandatory standards) will comply with all such legislation and standards applicable under such legislation; and

(c)    all Products will comply with applicable safety, efficacy, labelling packaging, consumer protection, health and environment guidelines, including Standards New Zealand and procedures (if any) relevant to the Products.

  • The Supplier further warrants that the Products will comply with the warranties set out in clause 7.3 until the end of the Product’s shelf life (as specified on the Product or otherwise represented by the Supplier) or, if there is no shelf life of the Product, until 12 months following the date of delivery of the Products to Sigma (Warranty Period).
    • If a Product does not comply with the warranties set out in clauses 7.3 and 7.4 (Defective Product), and Sigma notifies the Supplier of the defect during the Warranty Period, then, without limiting any other remedy Sigma may have, the Supplier must comply with any reasonable directions issued by Sigma at the Supplier’s own cost and expense, which may include:
      • cancelling any other Order for the same or similar Products (in whole or in part) without penalty to Sigma;
      • requiring the Supplier to collect any such Products already delivered to the Site and repay to Sigma any moneys paid to the Supplier for such Products; and/or
      • requiring the Supplier to replace the Defective Products within 5 Business Days (or such other reasonable period as may be agreed between the parties).
    • The warranties in clause 7.3 and 7.4 do not apply if the defect is caused by any acts or omissions by Sigma or its Personnel, the Product being used for purposes other than for purposes for which it was intended to be used, or the Product not being stored or transported in accordance with the Supplier’s instructions provided to Sigma.
    • The Supplier is responsible for procuring and granting to Sigma all necessary licences in respect of any Intellectual Property Rights included as part of the Products to the extent required for Sigma to distribute, market, promote and on-sell the Products as described in the Agreement.
  • Product withdrawals and recalls

Recalls

  • The parties acknowledge and agree that the Supplier:
    • is ultimately responsible for the initiation or implementation of, and strategy relating to, any Product recall; and
    • must, insofar as possible, consult, co-operate and co-ordinate its recall management with Sigma.
    • If either party becomes aware of any actual, potential or threatened defect, fault or other condition in any Products that is of such a nature or extent that those Products ought not be offered for sale to customers or consumers, then that party must immediately give notice to the other party of:
      • the Products affected, by reference to invoice numbers, product descriptions, batch codes, best before/use by date codes, New Zealand Pharmacodes item code numbers, quantities supplied, date of physical possession and where Products have been distributed and any other unique identifier;
      • the nature of the actual, potential or threatened defect, fault or other condition; and
      • the action the party has taken or proposes to take in relation to the threat.

Recall objective

  • Recall actions taken by the Supplier must have the overall objective to fully diminish any risk to the public from the threat and may include:
    • withdrawing the Products from offer for sale to the public, and where necessary, recalling any Products already sold;
    • complying with all legal requirements in relation to Product recalls; and
    • taking corrective action where appropriate, which may include disseminating relevant information to the public and government authorities.

Reimbursement of recall costs

  • The Supplier shall indemnify Sigma from and against any Loss or Claim arising directly in relation to the recall of any Products, except to the extent that the Loss is directly attributable to Sigma’s negligence or wrongful act or omission.
    • Any amount payable under this indemnity will be reduced to the extent of any amount already claimed under the Recall Fee. 
  • Product Range
    • The parties agree that at the date of this Agreement the range of Products is as set out in Schedule 1.
    • The Supplier must:
      • notify Sigma of any changes to its product lines (whether related to the Products or not), including any new product line that it introduces; and
      • provide Sigma with all information reasonably required by Sigma to make an informed decision as to whether to maintain lines, list new lines and/or delist Products.
    • Without limiting clause 9.2, the Supplier may at any time request that Sigma add a new product line to the range of Products. Sigma may accept or reject such a request (in whole or in part), in its sole discretion. Sigma’s acceptance of a such a request may be subject to any reasonable conditions that Sigma sees fit.
    • The Supplier may delete any Product from the range of Products on at least 12 weeks’ notice to Sigma, in which case:
      • Sigma may immediately cancel any Order for the Product either in whole or in part and the Supplier must immediately refund Sigma for any amount paid in respect of the cancelled Order;
      • each party must use reasonable commercial efforts to enable Sigma to sell through as much of the remaining stock of the Product as reasonably possible during the notice period; and
      • all residual stock of such Product held by Sigma at the expiry of such period will be returned to the Supplier, at the Supplier’s cost, for full credit (unless otherwise agreed in writing).
    • Sigma may delete any Product from the range of Products:
      • if the Product fails to meet any sales targets agreed between the parties or any conditions imposed by Sigma on its acceptance of the request to range the Product have not been satisfied;
      • if the Product ceases to be a Pharmac-funded Product; or
      • otherwise on 6 weeks’ notice to the Supplier.
    • Any replacement of a Product with a substituted product line proposed by the Supplier will be treated as a deletion of the Product from, and request to add a new product line to, the range of Products for the purpose of this clause.
  • Stock control

Expiring and slow-moving stock

  • The parties will periodically review and discuss:
    • the level of slow moving, short dated and excess stock of Products; and
    • the activities that each party will undertake, working collaboratively, in order to sell through that slow moving, short dated and excess stock (including through promotions to Sigma’s customers or prospective customers).
    • Notwithstanding clause 10.2, in addition to Sigma’s other rights under this Agreement and at law, Sigma has the right to return Products supplied to it under this Agreement (whether or not Sigma has accepted delivery of such Products), for a full credit, if:
      • due to overall low sales of the Product, the remaining shelf life of the Product is less than 3 months, provided that Sigma has first notified the Supplier of the slow-moving stock of Products and the parties have used reasonable endeavours to sell that stock of Products;
      • the Supplier’s licence or approval where applicable under the Medicines Act 1981 (NZ) to supply the Products has expired or is due to expire within 4 weeks; and/or
      • Sigma holds a quantity of Products that were ordered having regard to forecast information provided by the Supplier, but exceed any revised forecasted requirements (whether prepared by Sigma or the Supplier), provided that such Products are in substantially the same condition as when delivered to Sigma by the Supplier.

General warranties

  • Each party represents and warrants that, as at the date it enters this Agreement:
    • it is solvent and has full power and authority to enter and perform this Agreement; and
    • it will not be in breach of any agreement or arrangement to which it is a party or to which it is subject because of its execution of this Agreement or its performance under it.

Supplier warranties

Suspension and Termination

  1. Price

Calculation of the Price

  1. Subject to 13.2, the Price payable by Sigma to the Supplier for the Products will be:
    1. the Supplier’s list price to Sigma (Supplier List Price)for the Product as at the date the Order was submitted by Sigma to the Supplier;
    1. adjusted by any matters agreed in this Agreement including but not limited to those fees rebates and discounts specified in clause 14.1 of this Agreement and Schedule 2; and
    1. further adjusted by any separate or subsequent written agreement between Sigma and the Supplier concerning pricing.
    1. Unless otherwise agreed in writing by Sigma, all the Supplier’s costs associated with packaging, transport and delivery of the Products to the Site (including cost of pallets and containers) are included in the Price.

Price changes

  1. The Supplier may increase or decrease the Supplier List Price of the Products from time to time, provided that:
    1. if the Product is a Pharmac-funded Product, and the change to the Supplier List Price is outside the control of the Supplier, the Supplier notifies Sigma of the change as soon as reasonably practicable after learning of it;
    1. in any other case, the Supplier gives Sigma no less than three weeks’ written notice of the change and, once Sigma has validated the change.
    1. Where there is a decrease in Price, excluding Pharmac medicines, and in negotiation with Supplier, Sigma maybe entitled to claim the difference from the Supplier between the decreased Price of the Product and the original Price paid by Sigma to the Supplier for any Products held by Sigma at the date of the decrease or any Products currently on Order. The difference may be claimed by Sigma, at Sigma’s discretion by way of offset, deduction, separate invoice to the Supplier or “credit note” issued by the Supplier to Sigma.
  2. .
  3. Payment

Payment by Sigma

  1. The Supplier must issue Sigma with a Compliant Invoice for the Price of Products delivered in accordance with this Agreement at the time for the Supplier to invoice specified in the Details.
    1. Sigma must pay each Compliant Invoice by the date set out in the Details, except where Sigma:
      1. is required by Law to pay within a shorter time frame, in which case Sigma must pay within that time frame;
      1. exercises any right to retain, withhold, reduce or set-off any undisputed amount due to the Supplier in accordance with this Agreement;
      1. disputes in good faith the amount set out in the Supplier’s invoice, in which case:
        1. to the extent permitted by Law, Sigma must pay the undisputed part of the Supplier’s claim for payment or Compliant Invoice by the date set out in the Details and may withhold payment of the disputed part of the Supplier’s claim for payment or Compliant Invoice pending resolution of the dispute; and
        1. if the resolution of the dispute determines that Sigma must pay an amount to the Supplier, Sigma must pay that amount upon resolution of that dispute; or
      1. is otherwise required by Law to withhold a portion of payment, in which case Sigma will notify the Supplier in writing of the reason the payment (or portion of payment) must be withheld.
    1. Payment of an amount on an invoice, or failure to dispute an invoice prior to the time it is paid or due to be paid, does not prevent Sigma subsequently disputing its liability to pay that amount (provided it does not do so unreasonably and otherwise acts at all times in good faith), nor is it evidence that the Products or related Deliverable has been accepted or that it complies with this Agreement.
    1. Sigma may reduce any payment due to the Supplier under this Agreement by any undisputed amount which the Supplier must pay Sigma, including costs, charges, damages and expenses and any debts owed by the Supplier to Sigma under this Agreement. This does not limit Sigma’s right to recover those amounts in other ways.
  2. Inspection of records
    1. The Supplier must, during the Term and for a period of 7 years following the expiry or termination of this Agreement (Inspection Period), keep records of sufficient detail to enable calculation and verification of any amounts:
      1. set out in any invoice issued by the Supplier;
      1. in any claim for payment made by the Supplier, and/or
      1. that are or may be payable by the Supplier;
  3. under this Agreement.
    1. If reasonably requested by Sigma during the Inspection Period (but no more than once every six months), the Supplier must produce all such records to Sigma or its representatives in a format reasonably requested and allow Sigma and/or its representatives to inspect, examine, copy and/or take extracts from any such records.
  1. Confidential information

Confidentiality

  1. Unless permitted to disclose under clause 17.2, a party must maintain as confidential and must not (directly or indirectly) disclose, permit to be disclosed, or use for the purpose other than contemplated by this Agreement, any Confidential Information.

Permitted disclosure

  1. A party may disclose Confidential Information or documents:
    1. under corresponding obligations of confidence as imposed by this clause, to persons which control or are controlled by the party within the meaning of the Companies Act 1993 (NZ), and the employees, legal and other professional advisors or consultants of such persons;
    1. which is at the time lawfully in the possession of the proposed recipient of the information through sources other than the other party, or any Related Bodies Corporate of the other party, to this Agreement;
    1. in enforcing this Agreement or in a proceeding connected with this Agreement;
    1. if required under a binding order of a regulatory agency or under a procedure for discovery in any proceedings;
    1. if required under any law or any administrative guideline, directive, request or policy whether or not having the force of law;
    1. as required or permitted by this Agreement; or
    1. with the prior consent of the other party.

Return of Confidential Information

  1. Subject to clause 17.4, on termination or expiry of this Agreement, each party must immediately destroy or return all Confidential Information of the other party in its possession or control and will not retain any copies of the same.
    1. A party may keep a single copy of any such information as is required to comply with any applicable law.
  1. Termination

For cause

  1. To the extent permitted by law, either party may terminate this Agreement immediately by notice to the other party if:
    1. the other party commits a material breach of this Agreement and either:
      1. 20 Business Days have elapsed since the non-defaulting party provided notice in writing specifying the breach, and requiring the defaulting party to remedy the breach, and the defaulting party has failed to remedy the breach; or
      1. the breach is not capable of being remedied; or
    1. the other party suffers an Insolvency Event.

Rights and obligations on termination or expiration

  1. Termination or expiration of this Agreement is without prejudice to, and will not affect, accrued rights or remedies of either party.
    1. The rights and obligations of the parties which expressly, or by their nature would, continue beyond the expiration or termination of this Agreement shall survive such expiration or termination, including those in clauses 7.3, 7.4, 7.5, 8, 12.12(c), 12.8, 14.3, 15, 16, 17, 18.2, 18.3, 20 and 21.
  1. Force Majeure Event
    1. If a Force Majeure Event prevents a party (Affected party) from performing its obligations under the Agreement:
      1. the Affected party must promptly notify the other party of the obligations which will be affected by the Force Majeure Event, such notification must:
        1. specify the obligations and the extent to which it cannot perform those obligations;
        1. fully describe the Force Majeure Event;
        1. estimate (acting reasonably) the time during which the Force Majeure Event will continue; and
        1. specify the measures proposed to be adopted to remedy or minimise the effects of the Force Majeure Event;
      1. the affected obligations, other than an obligation to pay, will be suspended for the time the Force Majeure Event continues;
      1. the Affected party must use its best endeavours to mitigate the effect of the Force Majeure Event; and
      1. neither party will be liable to the other party for any Loss the other party suffers or incurs because of that Force Majeure Event.
    1. If the Supplier is prevented from performing its obligations for more than 30 Business Days because of a Force Majeure Event, Sigma may terminate the Agreement with immediate effect by giving written notice to the Supplier.
  2. Insurance
    1. In addition to any insurance each party is obliged to effect under all applicable laws, each party shall, at its own cost and expense, obtain and maintain in full force and effect during the Term policies of insurance specified in the Details with an annual cover of not less than the Minimum Insurance Amount.
    1. Upon reasonable request, a party must provide to the other party a certificate of currency and statement of insurance, including the date of the policy, for any of the policies referred to in this clause 20.
  3. Liability and indemnities
    1. The Supplier must indemnify Sigma, its Personnel and its Related Bodies Corporate (Indemnified Parties) against all Loss that the Indemnified Parties suffer or incur due to:
      1. any personal injury, illness or death to any person or damage to any real or tangible property caused or contributed to by a breach of this Agreement or the act or omission by or on behalf of the Supplier by its Personnel;
      1. any breach of the warranties contained in clause 7.3, 7.4 and 11.2 of this Agreement;
      1. any breach of clauses 12 (Ethics and Compliance) and  17 (Confidential Information);
      1. any actual or alleged defects or faults in the Products, including any Defective Products, and the reasonable costs of collection (such as collection from customers), return, disposal and/or destruction, and any associated reasonable management costs, of such Products;
      1. any Claim relating or connected to the infringement or violation of the rights of any third party, including any Intellectual Property Rights or breach of confidentiality; and
      1. the supply, importation, promotion, sale or resale of the Products by Sigma or the Supplier, or use of the Products by Sigma or any third party,
  4. except to the extent that the Loss is directly attributable to Sigma’s breach of its obligations under this Agreement, negligence or wrongful act or omission. 
  5. Each indemnity described in this clause 21 is a continuing obligation separate and independent from the Supplier’s other obligations and survives termination of this Agreement.
    1. Neither party shall be liable to the other party for any consequential, indirect or incidental loss, loss of profits, lost production, loss of anticipated savings and loss of opportunity arising from or about the performance or non-performance of its obligations under this Agreement howsoever arising. 
  1. Disputes

Notice

  1. If any dispute or difference of opinion between Sigma and the Supplier arises out of or in connection with this Agreement (Dispute), a party may give to the other party a notice (Dispute Notice) specifying the Dispute and requiring its resolution under this clause 22.

Negotiation

  1. If the Dispute is not resolved within 10 Business Days after a Dispute Notice is given to the other party, or longer period agreed in writing by the parties (Initial Period), each party must undertake genuine and good faith negotiations with a view to resolving the Dispute.
    1. If the parties are unable to resolve the Dispute within the Initial Period, then the Dispute must be referred to a senior representative of each of the parties with authority to settle the Dispute, who must, during the period of 20 Business Days after the expiration of the Initial Period, or any longer period agreed in writing by the parties to the Dispute (Further Period), meet with the other representatives and must undertake genuine and good faith negotiations with a view to resolving the Dispute.

Escalation options following Negotiation

  1. If the Dispute is not resolved within the Further Period, then either party may:
    1. by agreement with the other party submit the Dispute for mediation in accordance with and subject to Resolution Institute Mediation Rules; and
    1. if no agreement is reached under 22.4(a) above, commence legal action or court to resolve the matter.

Continued performance

  1. During the existence of any Dispute, the Parties must continue to perform all their obligations under this Agreement without prejudice to their position in respect of such Dispute, unless the Parties otherwise agree.
    1. Nothing in this clause 22 prevents a party from seeking any urgent injunctive or declaratory relief.
  1. Goods and services tax
    1. Unless specifically described in the Order as ‘GST inclusive’, the Price does not include any amount for GST.
    1. Where any supply to be made by the Supplier under the Agreement is subject to GST:
      1. the consideration payable for that supply but for the application of this clause 23 (GST Exclusive Consideration) shall be increased by, and Sigma shall pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply (GST Amount); and
      1. Sigma must pay the GST Amount to the Supplier at the same time and in the same manner as the GST Exclusive Consideration is payable or to be provided for that supply.
    1. Notwithstanding any other provision of this Agreement a party need not make any payment for a taxable supply made by the other party under or in accordance with this Agreement until the supplier has given the recipient a tax invoice in respect of that taxable supply.
    1. If any payment to be made to a party under or in connection with this Agreement is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that party, then the amount of the payment must be reduced by the amount of any input tax credit to which that party is entitled for that expense or other liability, such reduction to be effected before any increase in accordance with this clause 23.
    1. If an adjustment event has occurred in respect of a supply made under or in connection with this Agreement, any party that becomes aware of the occurrence of that adjustment event must notify the other party as soon as practicable, and the parties agree to take whatever steps are necessary (including to issue an adjustment note), and to make whatever adjustments are required, to ensure that any GST or additional GST on that supply, or refund of GST, is paid no later than one month after the supplier first becomes aware that the adjustment event has occurred.
    1. A word or expression defined in GST Law has the same meaning when used in this clause 23 unless expressly stated otherwise.
  2. General

Notices

  • Unless expressly stated otherwise in this Agreement, all notices, certificates, consents, approvals, waivers and other communications in connection with this Agreement must be:
    • in writing;
    • signed;
    • left at the address of the party as stated in the Details and updated from time to time, sent by prepaid ordinary post or sent by email to the email address stated in the Details and updated from time to time (Specified Contact Details).
    • Notices, certificates, consents, approvals, waivers and other communications are taken to be given by the sender and received by the recipient (whether or not the recipient actually receives it):
      • if delivered in person, when it is left at the recipient’s address set out in the Specified Contact Details;
      • if posted to the recipient’s address set out in the Specified Contact Details, at 9.00am on the 3rd (7th, if sent to or from an address in another country) day after the date of posting; and
      • if sent by email, 2 hours after the time the email is sent to the recipient’s email address set out in the Specified Contact Details, as recorded on the sender’s email system, unless the sender receives, within that time period, an automatic notification (other than an out of office message) indicating that the email has not been delivered.
    • If delivery or receipt would be deemed by clause 24.2 to be on a day that is not a business day or after 4.00pm (recipient’s time), it is deemed to have been received at 9.00am (recipient’s time) on the next business day. For the purposes of this clause, “business day” means a day that is not a Saturday, Sunday or public holiday in the recipient’s location.
  • Assignment
    • Subject to clause 24.6, neither party may assign or sub-contract all or any part of this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

Subcontractors

  • The Supplier will remain responsible for the supply of all subcontracted Products and for all acts, omissions, defaults and neglects of any subcontractor as if they were the Supplier’s acts, omissions, defaults or neglects.
    • Any subcontractor under this Agreement will not have any rights against Sigma or be entitled to receive any payment from Sigma unless otherwise agreed to in writing by Sigma.
    • Sigma may require the Supplier to replace or cease using a subcontractor if it considers that the subcontractor is failing to supply, or perform, the subcontracted Products, or if it considers the subcontractor has done or failed to do something which has the potential to adversely affect the supply of the Products, or the business or reputation of Sigma. 
    • Subject to clauses 24.5 and 24.7 to 24.9 of this Agreement, where the Supplier has appointed a 4PL service provider (4PL Provider) to perform certain services, the parties acknowledge and agree that the 4PL Provider:
      • is appointed by the Supplier as a subcontractor under this Agreement; and
      • the Supplier agrees to procure from the 4PL Provider that the 4PL Provider will supply the Products to Sigma under and in accordance with the terms of this Agreement. 

Relationship between the parties

  • The relationship between the parties is as independent contractors, and does not involve any relationship of agency, fiduciary, employment, partnership, joint venture or association.

Trustee of a Trust

  • Subject to any express provision in this Agreement which is to the contrary, if the Supplier enters into this Agreement as trustee of a trust, the supplier and its successors as trustee of the trust will be liable under this Agreement in its own right and as trustee of the trust.  Nothing releases the Supplier from any liability in its personal capacity.  The Supplier warrants that at the date of this Agreement:
    • all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by the Supplier as trustee and have not been varied or revoked and the trust is a valid and subsisting trust;
    • the Supplier is the sole trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by this Agreement on behalf of the trust and that this Agreement is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust; and
    • no restriction on the Supplier’s right of indemnity out of or lien over the trust’s assets exists or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the trust’s assets.

Amendment

  • This Agreement may be amended only by an agreement in writing signed by both parties.

Counterparts

  • This Agreement may be signed in counterparts and all counterparts taken together constitute one document.

Costs

  • Each party must pay its own costs in respect of this Agreement and the documents and transactions contemplated by this Agreement.

Severance 

  • A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the terms of this Agreement shall continue in force.

No waiver

  • A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy.  A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.  A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

Governing law

  • This Agreement is governed by the law applicable in New Zealand, and each party submits to the non-exclusive jurisdiction of the courts of New Zealand.

Entire agreement

  • This Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes all other representations and agreement about its subject matter.
  • the singular includes the plural and vice versa, and a gender includes other genders;
    • another grammatical form of a defined word or expression has a corresponding meaning;
    • a reference to NZD$, $NZD, dollar or $ is to New Zealand currency;
    • a reference to time is to Auckland, New Zealand time;
    • a reference to a party includes the party’s executors, administrators, successors and permitted assigns and substitutes;
    • a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
    • a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
    • the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
    • a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of the Agreement or any part of it;
    • if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be

 

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