General Terms and Conditions
Last updated 07/11/2023
1. Definitions
“Agreement” means this Agreement as accepted by the Customer, as may be varied and updated during the Term as set out herein.
“Cancellation Notice Period” means number of days’ notice as specified in the Details Schedule which must be given by a party to end this Agreement under clause 2.
“Carrier” means any freight, transport or delivery supplier which transports the Goods to or from Stocka’s Premises in connection with the Services.
“Charges” means the fees and charges costs, disbursements, reimbursements and any other amounts, payable by the Customer to Stocka for supply of the Services as detailed in the Services Pricing Schedule; and Carriers charges as detailed in the Freight Pricing Schedule, as may be updated from time to time in accordance with this Agreement.
“Customer” means the Customer named in this Agreement; and includes where appropriate or context requires its Workers, authorised representatives, successors, or assignees.
“Goods” means the Customer’s products and stock or other items as described in the Details Schedule and as may be amended or updated by the Customer from time to time, handled by Stocka for the purpose of the Services including all integrated or associated packaging, documents, accessories, and consumables.
“Minimum Volume” means the minimum volume of Services, warehouse storage area or Charges that the Customer agrees to purchase/pay for and Stocka agrees to provide as specified in the Details Schedule, (if any).
“Purchaser Order” means an order received by Stocka during the Term for Goods to be picked, packed, and delivered to a Purchaser whether notified by the Customer to Stocka, or directly by the Purchaser through an integrated ecommerce system, or by any other ordering process or method as may be introduced, used, or accepted by Stocka for the Services.
“Premises” means all or any premises owned, occupied, or controlled by Stocka at or from which the Services are provided.
“Purchaser/s” means the Customer’s own customer/s including any person making a Purchaser Order or named in the Purchaser Order as the buyer, purchaser or recipient of the Goods to be dispatched by Stocka.
“Services” means range of warehousing storage, stock take, pick and pack, dispatch, returns, reporting and related services provided by Stocka for the Customer’s Goods, as more particularly detailed in the Services Pricing Schedule specified in this Agreement.
“Start Date” means the date specified in the Details Schedule that Stocka will commence supply of the Services after onboarding the Customer.
“Stocka” means the Secure Distribution Service division of The Information Management Group (NZ) Limited, trading as Stocka and includes where appropriate or context requires its Workers, authorised representatives, successors, or assignees.
“Term” means the Term of this Agreement and the period of time that the Services will be supplied pursuant to this Agreement commencing on the start date, continuing until cancelled as set out in this Agreement.
“Worker” means any officer, employee, contractor, subcontractor, or other person employed or engaged or authorised to work for or carry out services for the business of a party or to represent a party, in connection with the matters under this Agreement.
2. Term, start date, ending agreement and cancellation fee
2.1 Agreement Date: The terms and conditions of this Agreement commence on the date of the Agreement (which is the date it is accepted by the Customer). Supply of the Services will commence on the Start Date
2.2 On-boarding and Commencement of Services:
(a) Following entry into this Agreement Stocka shall commence the Customer on-boarding process including reserving warehouse space for the Goods; assigning resources for commencement of Services from Start Date; setting up the Customer account in the Stocka system, platforms, and portal; inputting SKUs and scheduling the first inwards Goods deliveries.
(b) The Customer must promptly supply all information, details and assistance requested by Stocka to ensure onboarding is completed to enable the Services to commence on the Start Date.
(c) If the Services do not commence in full or at all on Start Date due to Customer delays or failure to supply all necessary information and assistance for onboarding, Stocka may charge the Customer before onboarding is complete and before the full Services commence for Services that are or would have been available for the Customer at the specified Start Date, for example Storage Charges for empty warehouse space reserved for the Customer; and/or Stocka may commence charging the weekly System Administration Fee two months after the Agreement Date.
2.3 Ending the Agreement. Unless terminated under clause 7, this Agreement shall continue until either party cancels at any time for any reason or without cause, by written cancellation notice giving at least the Cancellation Notice Period, to the other party, and the Services shall cease on expiry of the Cancellation Notice Period, and the provisions for Process Following Termination set out in clause 7 will apply. If the Agreement is cancelled by the Customer without giving the full Cancellation Notice Period or is cancelled by Stocka at any time under clause 7 for Customer breach, Stocka may charge, and the Customer must pay a Cancellation Fee.
2.4 Cancellation Fee. The Cancellation Fee shall be an amount equivalent to the likely Charges that would have been paid by the Customer up to the date the Agreement would have ended if the full Cancellation Notice Period had been given. Likely Charges will be based on Minimum Volume (if any) or average past monthly Charges, and/or other reasonable information Stocka considers relevant to estimate likely Charges. The Cancellation Fee will be for the full Cancellation Notice Period, less a credit for any notice given.
3. Charges and payment
3.1 Stocka may require payment of an advance deposit and / or authorised direct debit or credit card authority may be required as a condition ofcommencing or continuing supply of the Services.
3.2 Stocka invoices on a 4 week, 4 week, 5 week billing cycle and will submit GST invoices to the Customer for any Services provided in a billing cycle, following the conclusion of each billing cycle. Payment is due by the 20th of the month after each the end of each billing cycle in cleared funds, without set off or deduction, time being of the essence. GST is added to all Charges and other amounts under this Agreement unless the specified as GST inclusive.
3.3. If a Minimum Volume applies, it may be charged in full even if a lower volume or value of Services is supplied during a billing cycle, unless approved by Stocka on a case-by-case basis, or the lower volume is due to Stocka’s own acts or omissions. Unless payable pursuant to clause 2.2(c), the weekly System Administration Fee commences on:
(a) the date that is two months after the Agreement Date, or if later
(b) the date that the first delivery of inwards Goods to the Premises is made (provided that the Customer has notified Stocka in advance of the later date)
3.4 The Charges invoiced in each billing cycle shall be for the actual or estimated value of Services supplied in that period, which will likely vary from billing cycle to billing cycle. If the full amount and value of Charges payable for a billing cycle is not known or finalised by Stocka at the time of issuing an invoice, Stocka may invoice and the Customer must pay the known or estimated Charges for that period, and adjustments may be made in a future invoice any Services to reflect any under or over charging.
3.5 Any invoice query or dispute must be notified to Stocka prior to the payment due date, and Stocka will attempt to resolve the query before the date payable. If not resolved by the due date, the Customer must pay the full invoiced amount and Stocka shall provide any proven or agreed credit or refund due to the Customer in the next practical invoice period.
3.6 Stocka may charge the full amount for work carried out by Stocka under any Purchaser Order or other order or notification of Services required that is cancelled after being accepted for processing by Stocka.
3.7. Stocka may include in its invoices, or re-invoice to the Customer, and/or collect payment from the Customer or Purchasers of fees, charges, costs and expenses of third-party suppliers of products and services to the Customer or Purchasers; for example, Carrier costs for delivery of Purchaser Orders to Purchasers; or license costs for software, merchant or e-commerce fees. The Customer acknowledges and agrees that Stocka is not the supplier of, or liable to the Customer for the supply, quality, or failure or otherwise of such products and services, but is coordinating their supply, invoicing and/or payment process as a convenience to the Customer or Purchasers.
3.8 If any Charges are not paid in full on the due dates; then without limiting any other rights Stocka (or third-party supplier) may have:
(a) The Customer must pay on demand default interest at a rate equal to 3% above the then current overdraft unsecured rate of Stock as principal bankers, calculated on a daily basis on the amount unpaid from the due date until the date paid; and all costs and expenses (including costs on a solicitor/client basis and debt collectors’ or other enforcement or recovery costs) incurred by Stocka or the supplier in collecting any overdue payments or judgement amount.
(b) Stocka may suspend the further supply of all or any Services until all amounts due and any applicable default interest and costs are paid in full or terminate this Agreement pursuant to clause 9.
3.9 Review and Variation of Prices: The Pricing Schedules are current as at the date of this Agreement. During the Term the Charges and Pricing Schedules are subject to update as set out below:
(a) The Services Pricing Schedule: All or any Charges may be reviewed by Stocka annually in accordance with any increase in the Labour Cost Index (Salary and Wage Rates) and/or the Consumer Prices Index (CPI) as published by Statistics New Zealand (or any replacement index) over the preceding equivalent period; and at any other time on one month’s notice if Stocka’s own costs of supplying the Services to the Customer or in general materially increase.:
(b) The Freight Pricing Schedule and other third-party supplier charges: Carrier and other third party costs, charges and fees for products or services associated with the Services are subject to reviews and increases at any time in accordance with those suppliers’ own terms.
4. The goods
4.1 Compliant Goods: The Customer is solely responsible for, and shall ensure and warrants to Stocka that as at the date of this Agreement and throughout the Term, all Goods:
(a) Are legally obtained and owned by the Customer or their instructing principal at the time of inwards receipt by Stocka and throughout the time they are in Stocka’s possession or control.
(b) Match the description of Goods in this Agreement or as otherwise disclosed to Stocka by the Customer prior to delivery of any Goods to Stocka’s Premises.
(c) Are not Goods of the description or nature below, or otherwise of a type or category that Stocka in its discretion advises at any time are unacceptable or unsuitable for the Services (“non-compliant Goods”).
(i) heavier than 25kg per item or unit, noxious, volatile, explosive, toxic, foodstuffs, of a decomposing nature, a living organism, dangerous or harmful,
(ii) indecent, restricted, unlawful, or prohibited in New Zealand, or required to but do not have any license, permit or similar as may be required for ownership, handling, transport, or possession, breach the rights of any person including but not limited to use and possession of Personal Information, Confidential Information, or Intellectual Property,
(iii) supplied or created involving any form of modern slavery, forced labour or worker exploitation in any location, cash, cash equivalent or currency in any form,
(iv) comply with any statutory or government or other third party or external obligations applicable to the Customer or the Goods,
(d) If Stocka is coordinating Customs clearance of imported Goods or dispatch of Goods internationally from New Zealand, the Goods, and all components of them are
(i) legally permitted to be exported from the origin and imported to the destination; and all related documentation or declarations by the Customer’s own suppliers and the Customer are correct, true and complete; and
(ii) all Customs, IRD and other authorities’ requirements in any location are satisfied and paid.
4.2 If the Customer breaches any warranty and/or the Goods do not comply with paragraphs 4.1(a)-(d) including in the absence of Customer’s knowledge, Stocka may as it considers necessary in its discretion and without any liability to the Customer for loss or damage:
(a) Take reasonable steps to ensure the Goods are made compliant or harmless; or dispose of or destroy the Goods and/or
(b) Decline to accept delivery of the Goods, or require the Customer to uplift and remove them, or deliver the Goods to the Customers last known address; and/or
(c) Report the Goods or matters relating to them to relevant authorities; and/or suspend or cease the Services for the non-compliant Goods; and/or
(d) Terminate this Agreement; and the Customer shall pay Stocka’s actual costs of taking all or any such action, Stocka shall use reasonable efforts to give notice to or consult with the Customer where practicable or legally permitted before taking any such action.
4.3 The Customer shall hold harmless and fully indemnifies Stocka from and against any action, claim, investigation, loss, costs, damages suffered or incurred by or against them or any third party, in any way connected with non-compliant Goods.
4.4 Location of Goods. Stocka operate and provide the Services at different locations and the Customer acknowledges that Stocka may store the Goods and/or provide any part of the Services at or from Premises in any location without being required to give notice to the Customer of any change of Premises.
4.5 Third Party Demand. If Stocka receives any demand, order, writ, warrant or legal requirement (“demand”) to produce, provide or give access to the Goods, or information about the Goods or the Services or the Customer, from any authority or organisation:
(a) Subject to paragraph (b) Stocka shall if practicable and lawful, promptly notify the Customer before responding to or complying with such demand; and shall reasonably comply with any lawful Customer request or directions and assist the Customer to respond to, comply with, defend, or oppose such demand.
(b) Stocka may respond or comply to a demand without notifying or seeking consent of the Customer if in Stocka’s reasonable opinion it is legally required or failure to comply could cause Stocka to breach any duty or obligation that could lead to any action, liability, or penalties against Stocka.
(c) The Customer will pay or reimburse to Stocka all costs of receiving, responding to or complying with a demand including legal costs of advice on Stocka’s obligations; assisting the Customer with any opposition to, or compliance with demand; retrieval of Goods, copying of information, shipping costs, administration, and management time.
(d) Stocka shall have no liability to the Customer or any other person for costs, liability, damages, loss or penalty suffered by them in connection with Stocka’s response or actions in relation to a demand; and the Customer indemnifies and shall hold Stocka harmless from any action, claim, liability, costs, damages or penalty against Stocka by any person, in respect of the same.
4.5 Security over Goods. To secure payment of the Charges and other amounts as may bedue to Stocka under this Agreement during or after the Term, the Customer hereby grants to Stocka a security interest in all Goods in Stocka’s possession or control from time to time for the purpose of the Services, on the terms and conditions as set out in the current form ADLS PPSA Security Agreement.
4.6 Costs of Retrieval Notwithstanding and independently of any PPSA security interest held in the Goods by Stocka or any other person; the Customer agrees that the work by Stocka to locate, retrieve and/or stock count and/or package and prepare the Goods for removal is work performed to improve the Goods to enable permanent removal from Stocka’s systems and Premises following cancellation or termination of this Agreement or at any other time on request of the Customer or any other person. Stocka is not obliged to carry out such work or release the Goods from its possession until Stocka is paid in clear, irrevocable funds for such work. Stocka may retain and sell such Goods to recover the costs of such work if not paid within 1 days of the invoice due date; and may set off any other amounts due by the Customer under this Agreement from any surplus amount from the sale before disbursing the balance to the Customer or its successor. Furthermore, the Customer shall indemnify Stocka for and against any costs, liability, judgement, damages, claim or demand by any person related to permanent retrieval and removal of the Goods outside the ordinary course of providing the Services.
4.7 Risk of Loss or Damage and Insurance of Goods. The Customer shall carry the risk and cost of damaged or lost Goods due to fire, theft, natural disaster, or any other reason outside Stocka’s control, including where a Stocka Worker acts unlawfully or outside the scope of their duties or without authorisation. Stocka is not obliged to and does not insure the Goods against any loss or damage to the Goods by any cause, act or omission, or related cost, loss, liability or damages to the Customer or any other person.
5. The services, Stocka system
5.1 The scope, nature, value and volume of Services and the Goods as specified in this Agreement, may be updated, or varied by agreement of the parties recorded in writing at any time.
5.2 Stocka shall carry out the Services taking reasonable care of the Goods while in its possession from the time of receiving and accepting the Goods until the time of dispatching them for collection by the Carrier selected by the Customer for delivery of Purchaser Orders.
5.3 Stocka’s Status. The Customer acknowledges and agrees that:
(a) The Customer is the seller of the Goods, and Stocka has no direct liability or obligation to any Purchaser under or in any way related to this Agreement. Any communication or action directly between Stocka and a Purchaser, including if any payment is made directly by a Customer, is for convenience and efficiency only, with Stocka acting only as the Customer’s representative.
(b) Stocka is not an actual or contracting carrier of the Goods under this Agreement or any common law or legislation and the Services do not constitute performance of any stage of carriage of the Goods. Stocka is the Customer’s bailee and agent for the purpose of coordinating a contract of carriage for delivery of Goods with a Carrier for Goods despatched by Stocka under any Purchaser Order, and the contract of carriage for all intents and purposes shall be between the Customer and/or the Purchaser and the actual or contracting Carrier, whether selected by Stocka or the Customer or Purchaser. In the event Stocka is deemed to be a carrier in any regard, the Customer agrees that carriage of the Goods is at the Customer or Purchasers risk, or if more favourable and available to the Customer/Purchaser, on the terms of carriage of the actual Carrier.
5.4 Stocka Processes. The Customer agrees to follow and shall take all necessary steps to ensure its Purchasers and suppliers follow all Stocka processes, requirements and standards relating to supply of the Services including placing and updating Purchaser Orders, communications, payments, and administration systems, as set out in this Agreement and otherwise specified by Stocka as may be updated by Stocka at any time.
5.5 Inwards Goods
(a) Prior to delivery, the Customer must provide Stocka with an accurate description and unit count report for each delivery of incoming Goods. The Customer must ensure its Carriers deliver the Goods at the times and in the manner notified or otherwise accepted by Stocka.
(b) Stocka will undertake an inspection of each delivery of inwards Goods from the Customer and will notify the Customer if any Goods are non-compliant, or arrive in an incomplete or damaged condition or for any other reason will not be accepted by Stocka; however Stocka does not warrant that it will discover or identify all or any fault or damage or mis description of all units on receipt or at any time during its possession of the Goods.
(c) Stocka will carry out a stock count of each inwards delivery as soon as practicable after receipt. Any discrepancies between the incoming stock count and the Customer pre-delivery report shall be notified to the Customer. If there is no agreed reason for the discrepancy Stocka’s incoming stock count will be deemed correct. If the Customer waives the stock take, and any discrepancy is discovered between actual units of Goods, the Customers pre-delivery report, and later stock records and reports by Stocka, the Stocka records and reports will be deemed correct.
(d) The Customer must ensure each item or packaged unit of Goods is clearly labelled with suitable barcodes or SKUs and that all Goods arrive suitably packed, categorised, prepared, and ready in all regards to be devanned, inspected, counted, moved, receipted, and stored at the Stocka Premises for the purpose of the Services.
(e) If any inwards Goods are incorrectly or inadequately packaged, or lacking suitable labelling, or non-compliant Stocka may at its option re-pack or label or take other action at any time to enable the Goods to be accepted and the Services to be supplied. All costs of doing so will be charged to and payable by the Customer.
(f) Delivery of Goods to the Premises by Stocka shall be deemed complete at the time the Goods are recorded by Stocka as compliant and accepted for receipt.
5.6 Missing or Unaccounted for Goods From time to time the inventory of Goods in Stocka’s possession will differ from the Customer and/or Stocka’s records due to missing or unaccounted stock. Stocka will take all reasonable steps to prevent loss of Goods, but the Customer accepts that a certain level of loss is likely for reasons that cannot be identified or reconciled and the Customer must insure or cover the risk of such loss. Stocka shall not be liable for any discrepancies if stock units counted do not reconcile with the Customers or Stocka’s records.
5.7 Fulfilment of Purchaser Orders – Pick and Pack
(a) Stocka shall use reasonable efforts to process Purchaser Orders for dispatch to Purchasers in a timely manner having regard to the Purchaser Order requirements but shall not be liable to the Customer or any Purchaser for any delay in completing the preparation of the Goods for dispatch, or for any delivery delays after the Goods are uplifted by the Carrier.
(b) Stocka is entitled to rely on the information and details in every Purchaser Order it receives when selecting and preparing Goods for dispatch to Purchasers, whether the Purchaser Order is received from Purchasers through the e-commerce platform/s integrated with Stocka’s system as selected by the Customer, or entered through the Customer portal, or by email, telephone, app or other ordering method offered or introduced by Stocka; and the Customer shall be solely liable for the cost of Purchaser refunds, claims, complaints or re-supply due to Stocka receiving and acting on incorrect or incomplete Purchaser Orders, whether or not due to the Customer’s own omission or error.
(c) If Stocka fails to select and pack the correct Goods or dispatches the Goods to the wrong address due Stocka’s own error or omission where the full and correct information has been received by Stocka, Stocka shall repeat the Services or credit the Customer for the Charges invoiced or paid for that Purchaser Order, at no additional cost to the Customer or the Purchaser.
5.8 Dispatch. Stocka shall prepare the Goods for uplift by the Carrier and reasonably communicate with the Carrier, Customer and Purchaser to provide updates on Purchaser Orders. Stocka has no liability to the Customer or Purchaser for any act or omission of a Carrier. Any claims for delayed or non-delivery or missing or damaged Goods in transit reported to Stocka will be forwarded to the Carrier for resolution with the Customer or Purchaser under the Carriers own terms of supply. If Stocka is deemed to be the carrier, the carriage shall be at owners risk.
5.9 Customer Inspection or Stock Takes: The Customer or its representatives may only attend the Premises to inspect its Goods or carry out stock takes or any other purpose at the scheduled times and dates and frequencies as organised in advance and agreed to by Stocka. Stocka may require the Customer to be accompanied and supervised by a Stocka Worker throughout any visit and the Customer must comply with all Stocka requirements while at the Premises. The Customer will pay reasonable Charges for Worker time during and as may be necessary for preparation for a Customer attendance.
5.10 Stocka Systems. Stocka will provide access to a Customer portal; e-commerce integration of specified platforms; standard notifications and reports to the Customer and Purchasers; and any other standard applications, programs or system that may be added, updated or replaced by Stocka during the Term. The Customer will take all necessary steps at its own cost to ensure its own systems and technology integrate and/or communicate with Stocka’s systems to enable supply of the Services. specifications. The Customer must:
(a) Where applicable pay all related license fees and comply with license terms of third-party software suppliers.
(b) Have suitable antivirus, malware and other measures in place to prevent, hacking, or viruses or other interference or unauthorised access to Stocka’s technology and systems;
(c) Keep all passwords or codes provided by Stocka or otherwise necessary for the Services, secure and confidential;
(d) Ensure that only its authorised users are able to view or use the customer portal or any software or system Stocka provides access to.
5.11 Supply to Customer Affiliates
(a) If the named Customer is part of a group or network of businesses, for example a franchise network or group of companies with common ownership or control or a buyers group or co-operative; and it is intended that the Services will be supplied to other members of the Customer’s group or network “affiliates” in addition to or instead of the named Customer; Stocka will provide the Services on the terms and conditions of this Agreement to any affiliates named or described in the Details Schedule or later notified in writing by the Customer, as if they were the named Customer and all reference to Customer in this Agreement will be deemed to include those affiliates as if they were the Customer.
(b) The Customer must ensure its affiliates are aware of and comply with all Customer obligations, processes, and requirements under this Agreement as a condition of supply under this Agreement.
( c) All Affiliates named by the Customer are deemed to be authorised by the Customer to make Purchaser Orders, requests, representation, or communication on matters in relation to the Services and this Agreement.
(d) Stocka shall include all Services to all affiliates on the Customer’s invoices, and the Customer shall pay all Charges incurred by Affiliates unless Stocka specifically agrees to invoice affiliates individually, in which case the Customer fully indemnifies Stocka for any non-payment of Charges by affiliates and any costs incurred in collecting or enforcing overdue payments. Any other breach of Customer obligations by an affiliate ordering and receiving the Services or any other act or omission related this Agreement shall be deemed a Customer breach forwhich the Customer shall be liable to Stocka, and Stocka may suspend or terminate further supply of Services to that affiliate and/or terminate this Agreement.
(e) Stocka may end the supply of Services to all or any affiliates under this Agreement at any time, and/or require them to enter into their own Agreement with Stocka which may be on different terms to this Agreement.
5.12 Health and Safety
(a) Each party undertakes to the other to meet their duties and obligations in connection with the Services, the Premises, and any other matter in connection with this Agreement in accordance with the Health and Safety at Work Act 2015.
(b) Without limitation, it is the Customer’s responsibility to notify Stocka in writing of any hazards or risks of any nature in relation to the Goods.
(c) The Customer must comply with Stocka’s health and safety policy, procedures and requirements at all times when attending the Premises.
6. Liabilities limited or excluded
6.1 Stocka Excluded Liability To the fullest extent permitted by law, unless specifically provided for in this Agreement, Stocka excludes all obligations, warranties, and liability to the Customer or any third party for any loss, costs or damages, claim or liability suffered or incurred by them arising directly or indirectly from any breach, act, or omission of Stocka as set out below:
(a) Loss of profits or any other consequential, indirect, or special loss, costs, or damages.
(b) Any implied or deemed warranty, obligation or liability under the Consumer Guarantees Act 1993 and sections 9, 12A, and 13 of the Fair-Trading Act 1986 due to the commercial nature of the Services and both parties being in trade.
(c) Any claim or action unless notice in writing of the claim is given within 30 days of the occurrence of the alleged event or default.
(d) Any act or omission of any Worker that occurs without Stocka actual or deemed authorisation, or that is outside the scope of the Worker’s authority, rights, and duties, or that could not have been reasonably foreseen and prevented by Stocka whether or not it occurs in the course of supplying the Services or any part of them.
(e) Any other matter in this Agreement for which Stocka responsibility, warranties or liability is specifically excluded, or the Customer specifically has sole responsibility, risk or liability.
(f) All other implied or deemed warranties or liability or obligation under any law, custom, or convention or practice.
6.2 Stocka Maximum Liability: Where liability is not excluded or otherwise specifically limited in this Agreement, the maximum aggregate liability Stocka shall have to the Customer or any third party during or after the Term in respect of any damage to or loss of Goods; and all costs, loss, damages, liability against or suffered by them under or in connection with this Agreement from any breach, negligence, misrepresentation, exercise of discretion, or other act or omission of Stocka, shall not exceed:
(a) For any failure to deliver the Services or any part of them with reasonable care or with any error in Stocka’s control; Stocka repeating or re-supplying the applicable Services at no further Charge or at its discretion Stocka or crediting the Customer an amount equivalent to the Charge for the affected Services or goods.
(b) For any other claim or series of claims from one event, the lesser of $10,000 including GST if applicable, or a sum equivalent to the Charges paid in the 3 months that preceded the claim.
6.3 Every right, exemption, or limitation from liability and defence to which Stocka is entitled in accordance with this Agreement shall also be available and shall extend to protect all Stocka Workers.
7. Suspension of services, breach and end of agreement
7.1 Suspension.
(a) Stocka may suspend, postpone or delay all or any part of the Services during the Term, giving reasonable notice where practicable:
(i) Due to an outage, or unavailability of the Services for operational, technical, repair or maintenance reasons;
(ii) Due to a Force Majeure event;
(iii) If the Customer is overdue with any payment due under this Agreement by more than 21 days whether or not written demand for payment has been made;
(iv)If the Customer is breach of its obligations under this Agreement resulting in delays or difficulties to Stocka being to provide the Services including but not limited to if the Goods are non-compliant.
(v) If there is a dispute between the parties and it is not in Stockas opinion practicable or reasonable for the Services to continue pendingresolution of the dispute.
(b) Stocka will resume the suspended Services as soon as reasonably practicable after the event or circumstance giving rise to the suspension has ended or been resolved unless a party lawfully terminates this Agreement during the period of suspension.
(c) Any fixed or minimum Charges under this Agreement shall continue to accrue and be payable by the Customer during the period of suspension if due to Customer breach or overdue payment.
(d) Stocka is not liable to the Customer for any loss, cost, liability or other consequence to the Customer, the Purchasers or any third party for a suspension of Services under this clause.
7.2 Termination. This Agreement, supply of the Services and all future obligations of the parties hereunder shall terminate on the earlier of the following events (“termination date”):
(a) Cancellation by either party at will pursuant to clause 2;
(b) Pursuant to the Force Majeure provisions of this Agreement;
(c) By Stocka at any time if the Customer has failed to pay any overdue, undisputed amount under this Agreement after Stocka has given written demand to pay within 14 days; or the Customer has not paid all Charges in full on the due dates on three or more occasions or in Stocka’s opinion becomes an unacceptable credit risk; or if any Goods are non-compliant; or if the Customer does not follow Stocka’s processes and requirements on a repeated or regular basis.
(d) By any party if the other party is bankrupted or has a liquidator or receiver appointed; or is fraudulent, dishonest, misleading or has acted unlawfully in connection with the matters under this Agreement; or has otherwise materially breached or repudiated this Agreement.
(e) In any other event described in this Agreement as justifying termination.
7.3 Consequences of Termination
(a) The termination or expiry of this Agreement for any reason shall be without prejudice to any rights, remedies or obligations of a party accrued or events occurring prior to termination date, or survival of those rights and obligations that can be reasonably implied to survive termination.
(b) The parties will consult and co-operate on all matters relating to the end of this Agreement pending and following termination date and Stocka shall provide reasonable time and resources at the Customer’s cost to assist with handover to any new supplier of the Services.
7.4 Final Retrieval of Goods
(a) Following termination for any reason, and subject to any lien or security held by Stocka and payment of the retrieval Charges before release, all Goods will be permanently retrieved and removed from the Premises at the Customer’s cost by way of:
(i) Stocka dispatching the Goods for delivery to the Customer or its agent or new supplier; or
(ii)The Customer uplifting the Goods from the Premises; or
(iii) Stocka destroying or disposing of the Goods including selling all or any of the Goods and retaining the proceeds to cover its costs and any amounts due under this Agreement, including storage after termination date if the Goods are not accepted or uplifted by the Customer or any person on its behalf within a reasonable period following termination date.
(b) Stocka shall have no obligation or liability to the Customer or any third party, whatsoever for any loss, claim, damages or consequence of any action carried out by Stocka pursuant to paragraph (a); and the Customer indemnifies and holds Stocka harmless for any claim or action, liability or damages suffered by Stocka in relation to the same.
8. General
8.1 Interpretation and Application: In this Agreement, unless the context otherwise specifies or requires:
8.2 Reference to a company or other entity includes reference to a person and vice versa;
8.3 All approvals, consents and waivers by a party must be in writing to be valid and enforceable.
8.4 An obligation not to do anything will be deemed to include an obligation not to permit or reasonably fail to prevent that thing to be done.
8.5 If something is to be done on or on a day that is a weekend or public holiday in the location it is to be done, it must be done or completed on the prior business day.
8.6 Variation: these General Terms and Conditions may be reasonably updated at any time during the Term by Stocka without notice to the Customer. The latest and applicable version shall be that version on Stocka’s website or provided on request.
8.7 Entire Agreement: This Agreement, constitutes the entire agreement between the parties and supersedes or overrides prior or subsequent agreements, representations, arrangements, or understandings between the parties in any way relating to its subject matter; including as may be set out in the Customer’s own terms of supply provided to Stocka at any time unless agreed to by written agreement of the parties.
8.8 Notices: Notices must be in writing and delivered in person, by courier or tracked mail, to addresses detailed in the Details Schedule. Notices are deemed given on the date and time of receipt or recorded delivery time. A party is entitled to rely on an address being current unless updated by similar notice.
8.9 Customer Acknowledgements
(a) By entering this Agreement and/or proceeding with the Services after being provided with or referred to a copy of this Agreement and in particular these General Terms and Conditions including an online or electronic version; the Customer accepts the terms of the Agreement and acknowledges it has had an opportunity to read and understand the same, and/or discuss or seek clarification from Stocka of the obligations and rights of the parties, before signing.
(b) The Customer accepts it is responsible for undertaking its own due diligence before entering this Agreement, and solely relies on its own research and judgement for ensuring:
(i) The Services comply with any statutory or government or other third party or external obligations applicable to the Customer or the Goods, The Customer is satisfied that Stocka as a supplier, and the scope and nature of the Services, are suitable and meet the Customer’s needs and specifications; and
(ii) This Agreement contains all terms, conditions, and specifications that the Customer relies on.
(c) The person signing or accepting this Agreement is authorised by the Customer to do so and before signing/accepting has advised all owners of the Customer that they have personal liability to Stocka for the Customer’s obligations and payments as described in clause 8.8.
8.10 Force Majeure
(a) A non-performing party shall not be liable or responsible to, or be required to indemnify the other party for any breach of this Agreement or failure or delay in performing or complying with any obligation under this Agreement (other than payment of Charges properly due) if:
(i) The failure or breach is directly or materially due to, caused or contributed to by events, circumstances or forces beyond the reasonable controlof the non-performing party such as but not limited to natural or weather event or disaster, fire, war or terrorist act, loss or interruption of access to utilities or essential supplies or services, pandemic or epidemic, an order of government or authority (“a force majeure event”); and
(ii) The non-performing party relying on the force majeure event has taken and continues to take reasonable steps to prevent, overcome or minimise or mitigate the occurrence or effect of the force majeure event on its performance.
(b) If the failure or delay or other breach by a party continues for three months or longer after date of notice or to the force majeure event, either party may terminate this Agreement by written notice to the other.
(c) No Charges are payable for Services to the extent they are not provided during or due to a force majeure event; and the Customer may at its own cost engage a third party to carry out the same or similar services during such period. Stocka shall not be liable to the Customer for any costs payable to a third party even if they exceed the Charges that would have been payable for the same under this Agreement. The Customer must pay Stocka’s standard Charges for any retrieval and delivery of the Goods to enable the third party to carry out the Services.
8.11 Personal Information:
(a) To facilitate the administration, communications and efficient supply of the Services, and other purposes in connection with this Agreement, the parties may from time to time collect or acquire Personal Information from each other or legitimate external sources; and each party shall comply with all related obligations pursuant to the Privacy Act and all related codes and standards.
(b) If any part of the Goods comprise of, incorporate or include any Personal Information, it shall not be deemed to be Personal Information collected or stored by Stocka, and the Customer shall be solely responsible and liable for compliance with the Privacy Act and its obligations to third parties in all regards including receiving and responding to any requests or demands, updating, amending, or providing access to authorised persons of such Personal Information, and any claim or action or liability for breach of privacy or similar.
(c) Stocka will take reasonable measures to prevent unauthorised use or disclosure of or access to such information, and shall if practicable, retrieve and provide access to Personal Information to the Customer upon request.
(d) Stocka excludes as far as legally permitted, all liability, duties or obligations related to such Personal Information and the Customer shall fully indemnify and hold Stocka harmless from any claim, action, costs, damages, or liability against Stocka in relation to the same.
(e) The Customer shall pay Stocka’s then current Charges for retrieval or other attendances in connection with the Personal Information.
8.12 Customer Owner Liable
(a) If the Customer is a limited liability company, trust, partnership of two or more people or other non-individual entity, the owner/s, trustee/s, partners or other persons having a controlling interest in the named Customer shall be personally liable to Stocka for the Customer’s obligations including payment of all Charges in the event the Customer does not comply with all such obligations or a liquidator is appointed or any person holding a security over the assets of the Customer takes any action or prevents Stocka from receiving all amounts due to it under this Agreement.
