1. TERMS

1.1 All Goods and Services supplied by TRADE WINDOW ORIGIN LIMITED, a company incorporated under the laws of New Zealand with NZBN 9429047646308 and company number 7686536, having its registered office at 10 Bisley Road, Enderley, Hamilton, 3214, New Zealand (“TWO”) to any individual or a legal entity (“Customer”) (together the “Parties”, and individually, a “Party”) will be upon these Terms of Trade (“ToT”) unless otherwise agreed in writing.

1.2  For clarity, “Services” means the provision of access to TWO’s proprietary software platform for the creation, submission, review, approval, certification, and/or self-certification of Certificates of Origin and other related export documentation, including related support, updates, integrations and reporting functionality and “Goods” means any physical documents, including wet-stamped Certificates of Origin, generated as part of the Services and physically delivered to the Customer upon request.

1.3  If a Customer is entering into these ToT on behalf of another legal entity, the Customer represents that he/she has the authority to bind such entity to these terms and conditions.

1.4  The affirmative act of using the Goods and Services as offered by TWO or submitting an order form to TWO means a Customer accepts and agrees to be bound by these ToT.

1.5  These ToT supersedes any previous standard terms and conditions agreed between TWO and the Customer and governs the provision of Services and/or Goods by TWO to the Customer.

1.6  TWO’s agents and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these ToT.

1.7  These ToT is effective the earlier of Customer’s first use of the Services and/or Goods, or the affirmative act of clicking accept, or signature date of these ToT by the Customer. (“Effective Date”).

2. PAYMENT

2.1 The price for the Goods and Services will be as quoted in writing by TWO to the Customer. In the absence of a written quote, TWO’s standard charges apply. All quotes and charges are expressed as exclusive of GST and GST will be payable by the Customer in addition to such payment.

2.2 All freight and delivery charges will be in addition to the quoted price and will be payable by the Customer.

2.3 Payment for all Goods and Services must be made by the Customer to TWO on the 20th of the month following the date of TWO’s invoice unless TWO has requested payment before this date. TWO may at its option issue a monthly interim invoice for work where the delivery of services is over a period exceeding one month.

2.4 If the Customer fails to make payment on the due date then the Customer will pay TWO a penalty payment calculated as 5% above the average monthly base commercial lending rate from time to time charged by TWO’s bank. Interest will be calculated monthly and payable on demand.

2.5 Any expenses, disbursements and legal costs incurred by TWO in the enforcement of any rights contained in these terms of trade will be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.

3. PROVISION OF SERVICES

3.1 TWO will:

(a)  use all reasonable skill and care in providing the Goods and Services in a timely and efficient manner.

(b)  not be liable for any delay or non-performance providing Goods or Services if the delay or non-performance is attributable (directly or indirectly) to circumstances beyond its reasonable control.

(c) not be obliged to accept any order for Goods or Services made by the Customer and will be entitled, in its sole discretion, to refuse to provide or perform all or any such Goods and Services.

3.3 The Customer will not cancel any order for Goods or Services (in full or in part) without first obtaining the written consent of TWO.

3.4 The Customer is responsible for all activity occurring under its account, including by its authorised users and end users, and must ensure they comply with these ToT.

4. LIABILITY AND INDEMNITY

4.1 With the exception of express warranties contained in these ToT, all warranties and representations in respect of Goods and Services supplied are excluded to the extent permitted by law.

4.2 The Customer acknowledges that if it acquires the Services or Goods for a business purpose then the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 are excluded and do not apply. TWO explicitly excludes all implied warranties of merchantability, non-infringement and fitness for a particular purpose.

4.3 To the fullest extent permitted by law, TWO will not be liable to the Customer or any other person for any direct, indirect, incidental, special, exemplary, punitive, or consequential loss or damages whatsoever, including without limitation loss of profits, revenue, goodwill, data, or anticipated savings, arising out of or in connection with the Services, the Goods, or these ToT, whether in contract, tort (including negligence), equity, or otherwise, and whether or not the possibility of such damages was foreseeable.

4.4  Without limiting clause 4.3, under no circumstances will TWO be liable for:

(a)           any errors, inaccuracies, or omissions in a Certificate of Origin (whether generated by the Customer or issued by TWO),

(b)           any delays, failures, or disruptions in the availability of the Services,

(c)           any loss caused by reliance on the Services or on any certificate generated through the Services, or

(d)           any acts or omissions of the Customer or its users.

5. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)

5.1 Title in any Goods and Services supplied by TWO will pass to the Customer only when the Customer has made payment in full for the same and TWO will have a security interest in all Goods and Services provided to the Customer until that has occurred.

5.2 The Customer agrees to sign any documents and provide any further information required for TWO to perfect its security interest in the Goods. The Customer grants TWO a security interest in all of the Customer’s present and after-acquired property that TWO has performed Services on or to which Goods or materials supplied by TWO have been attached or incorporated.

5.3 Where Goods and Services are retained by TWO pursuant to 5.1, the Customer waives its right to receive a notice under section 120 of the Personal Property Securities Act 1999 (‘PPSA’) and to object under section 121 of the PPSA.

5.4 The Customer agrees sections 114(1)(a), 133 and 134 of the PPSA do not apply to these ToT.

6. TERMINATION

6.1 These ToT may be terminated by notice in writing as follows:

(a)     By TWO if the Customer commits any act of bankruptcy, enters into any arrangement with its creditors or (in the case of a company does any act which would render it liable to be liquidated), or if a resolution is passed or proceedings commenced for the liquidation or voluntary administration of the Customer or if a receiver is appointed in respect of all or any of the Customers assets.
(b)     By TWO if the Customer is in breach of these ToT.
(c)     By TWO upon completion of the delivery of the services and goods and payment in full by the Customer
(d)    Unilaterally by the Customer or TWO without cause, subject to 30 days’ written notice of such termination to the other Party by the terminating Party

6.2          Without limiting its rights under these Terms, TWO may suspend the Customer’s access to the Services immediately upon notice if:
(a)           the Customer breaches any material provision of these Terms,
(b)           such suspension is required to comply with applicable law, or
(c)           the Customer’s use of the Services poses a security risk or may harm other users.

Access will be reinstated once the issue is resolved to TWO’s satisfaction.

7. INTELLECTUAL PROPERTY

7.1 “Intellectual Property” includes copyright and all rights existing anywhere in the world and databases, confidential information, know-how, all, copyrights, inventions, trade secrets, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property. The Customer agrees and acknowledges that TWO is the owner and/or licensee of the intellectual property rights in certain systems, know-how and other intellectual property which may be utilised in the provision of the services or goods provided to the Customer and that the Customer obtains no rights and or interests whatsoever in such intellectual property by virtue of its purchase of the Services and /or Goods from TWO. There are no implied licences, and all rights not expressly granted hereunder are reserved to TWO and its licensors.

7.2 The Customer agrees that when it discusses and provides TWO with information and feedback regarding: (i) the nature and extent of Customer’s use or operation of the Service or Goods; (ii) any changes or suggestions regarding the service or (iii) errors or feature requests (together “Feedback”) that is assigns to TWO all right, title and interest in and to such Feedback, including all intellectual property rights therein (including moral rights; provided that any non-assignable moral rights are waived to the extent permitted by law) and will provide commercially reasonable assistance at the request of TWO to perfect such assignment.

7.3 The Customer acknowledges and agrees that TWO may (i) use the data and information about the Customer and the Customer’s end-users’s use of the Goods and Services to generate anonymised and aggregated statistical and analytical data (“Analytical Data”); and (ii) use such Analytical Data for TWO’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights, and (iii) supply Analytical Data to third parties. Title to, and all Intellectual Property Rights in, Analytical Data is and remains TWO’s property.

7.4 TWO’s rights under this clause 7 will survive termination or expiry of these ToT.

7.5 The Customer grants TWO a non-exclusive, royalty-free, worldwide, irrevocable licence to use, reproduce, modify, adapt, and otherwise exploit any data submitted or input by the Customer or its end users into the Services for the purposes of providing, maintaining, improving, and developing the Services, including internal analytics, diagnostics, and support. TWO will comply with applicable privacy laws in connection with any personal data contained within such submissions.

7.6    The Customer must not (and must ensure that its users do not):

(a)           decompile, reverse engineer or attempt to derive the source code of the Services;
(b)           circumvent any technical restrictions or authentication measures;
(c)           use the Services to violate any law or infringe any third party rights;
(d)           access the Services to build a competing product.

8. CONFIDENTIAL INFORMATION

8.1 Neither TWO nor the Customer will disclose information that is confidential to the other party to a third party unless compelled to do so by law. “Confidential Information” means any and all information disclosed by a party (“Discloser”) to the other party (“Recipient”)whether written, oral, electronic, or in any other form, that is either marked as confidential, identified as confidential at the time of disclosure, or that a reasonable person would understand to be confidential given the nature of the information or the circumstances of its disclosure. Confidential Information includes, without limitation, business and financial information, software, source code, trade secrets, specifications, technical information, strategies, personnel information, know-how, and proprietary information of third parties.

8.2  Notwithstanding clause 8.1, the Customer acknowledges and agrees that TWO may disclose the Customer’s name, address, email domain, logo, transaction volumes, and certificate accreditation activity to approved Agents acting on behalf of TWO to market or support the Services, provided such Agents are bound by confidentiality obligations no less restrictive than those set out in this clause.

8.3 The Customer grants TWO a non-exclusive, royalty-free, limited licence during the term of this Agreement to use the Customer’s name, logo, and a general description of its use of the Services in TWO’s promotional and marketing materials, including websites, presentations, case studies, investor reports, and press releases. TWO will comply with any reasonable brand usage guidelines provided in writing by the Customer and will not imply any endorsement of its services without the Customer’s prior written approval.

9. AUDIT

9.1 JAS-ANZ (Joint Accreditation System of Australia and New Zealand) assessors are entitled to attend audits for the purpose of witnessing the application of the accredited body’s procedures by its verifiers.

9.2 JAS-ANZ assessors are entitled to conduct validation visits of the client’s system in the event that the TWO fails to show cause if challenged over its performance against the accreditation criteria.

10. MISCELLANEOUS

10.1 Neither Party may assign any of its rights or obligations under these ToT without the prior written consent of the other Party.

10.2 Every notice given under these ToT will be sufficiently given if delivered personally, posted or successfully transmitted by email or fax to the intended recipient at his/her or their last known address, email or facsimile number.

10.3 Neither Party will be liable for any delay or failure for the performance of any of the obligations imposed on them under these ToT if such failure is beyond the reasonable control and without fault or negligence of that Party, provided that this clause will not extend to excuse the consequences of insolvency or financial difficulty.

10.4 These ToT constitutes the entire agreement between the Parties which supersedes any prior arrangement or understanding whether written or oral relating to the subject matter of this agreement.

10.5 These ToT is governed by the laws in New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.

10.6 The Customer is solely responsible for complying with all applicable laws in the jurisdictions in which it accesses or uses the Services. TWO makes no representation that the Services are appropriate or lawful in any particular country or territory.