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Arrow ECS New Zealand General Reseller Terms and Conditions

PLEASE READ CAREFULLY: UNLESS OTHERWISE AGREED, THESE GENERAL RESELLERS TERMS AND CONDITIONS (“AGREEMENT”) apply to the Goods and Services provided by Arrow ECS New Zealand Limited, company number 1810036 /NZBN 9429034145050 (“Arrow ECS”, “Our”) and the entity entering into this Agreement (“Reseller”, “You”) who agrees to be bound by this Agreement. By ordering, accepting delivery, keeping or using the Goods or otherwise proceeding with any transaction with Arrow ECS, Reseller agrees to the terms and conditions of this Agreement.

  1. DEFINITIONS

    1.1. Additional Charges. May include (but is not limited to) delivery, handling and storage charges, OEM cancellation or modification charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imports and all money, other than the Purchase Price, payable by the Reseller to Arrow ECS arising out of the sale of the Goods or provision of the Services.
    1.2. Change of Control. A change of the entity which controls the Reseller or, if no entity controls the Reseller, the assumption of control of Reseller by a person or entity.
    1.3. Cloud Based Offering. The cloud services and tools available through the Arrow ECS CloudSelect Marketplace (formerly known as DC CloudSelect).
    1.4. Cloud Vendor. The entity responsible for the provisioning of the cloud service or tool to Arrow ECS via the Arrow ECS CloudSelect Marketplace.
    1.5. Confirmation of Credit Terms. The credit terms offered by Arrow ECS to Reseller following a credit check.
    1.6. CRMA. The Arrow ECS Credit Return Material Authorisation policy at the time issued in accordance with clause 18.1.
    1.7. End User. Is the person or entity that acquires Goods and/or Services from Reseller.
    1.8. Goods. Products purchased by Reseller including: hardware, software, ancillary software (any software made available to Reseller for the purpose of facilitating access to, operation of, and/or use with the hardware), and associated documentation (the applicable documentation supplied with the Goods describing the features and functions of the associated Goods).
    1.9. GST. Shall mean the goods and services tax as defined under the Goods and Services Tax Act 1985 and associated regulations as amended.
    1.10. Insolvency Event. Where an administrator, liquidator, manager and receiver or any other administrator is appointed over the assets or the business of the entity, or the entity enters into any composition or arrangement with its creditors.
    1.11. OEM. Original Equipment Manufacturer or supplier of the Goods and/or Services.
    1.12. Purchase Order. A written or electronic order provided to Arrow ECS by Reseller consistent with the corresponding price Quote provided by Arrow ECS for the purchase of Goods and/or Services.
    1.13. Purchase Price. Means the full payment of the list price for the Goods and/or Services as quoted by Arrow ECS at the date of the invoice or such other price as may be agreed by Arrow ECS and the Reseller prior to delivery of the Goods or provision of the Service, including any Additional Charges that may be stated under the invoice or pro-forma invoice.
    1.14. Quote. The applicable written or electronic price quotation provided by Arrow ECS to Reseller in response to Reseller’s corresponding Purchase Order.
    1.15. Services. Arrow ECS’s consulting services (“Professional Services”) and/or its generally available technical support and maintenance services (“Support Services”).
    1.16. Third Party. Any party not a party to this Agreement, including an End User.
    1.17. TRMA. The Arrow ECS Technical Return Material Authorisation policy in accordance with clause 18.3.


  2. FORMATION OF AGREEMENT

    2.1.   This Agreement and all other documents referred to in this Agreement and the Quote, set out the entire agreement of the parties about the subject matter of this Agreement and supersede all other representations, negotiations, arrangements, understandings or agreements and all other communications or contained on, referred to or attached to the Reseller’s Purchase Order or any other document provided by Reseller.
    2.2.   The terms of this Agreement govern the sale of Goods and/or Services provided by Arrow ECS and prevail over any other terms or document provided by Reseller to Arrow ECS; unless stated otherwise.
    2.3.   By placing a Purchase Order for Goods and/or Services with Arrow ECS from time to time, Reseller accepts and agrees to the current version of the Agreement (and other documents expressly referenced) as displayed at the time of placing the Purchase Order and that to the full extent permitted by law all other terms and conditions (whether contained in the Purchase Order or otherwise) will be excluded.

  3. RESALE

    3.1. All Goods supplied by Arrow ECS may only be re-sold by Reseller within New Zealand, unless otherwise agreed in writing.
    3.2. Reseller agrees not to re-sell or supply the Goods to any Third Party that Reseller knows, or should have known after making reasonable enquiries, is likely to sell or supply outside of New Zealand or further supply or on-sell the Goods.
    3.3. Reseller agrees that it may, from time to time, be required by OEM, or by Arrow ECS as advised by OEM, to comply with OEM’s terms or instructions relating to Goods manufactured by the OEM.
    3.4. Reseller agrees and understands that a breach under this clause shall be deemed a material breach, giving Arrow ECS the right to terminate the Agreement immediately with Reseller. Reseller will defend, indemnify and hold harmless Arrow ECS, its related bodies corporate, affiliates and each of Arrow ECS/its related bodies corporate/its affiliates respective officers, directors, employees, shareholders, representatives and agents from and against all claims, demands, proceedings, actions, liabilities, losses, damages, costs or expense of any kind (including reasonable legal fees) incurred or sustained as a result of, or relating to Reseller’s failure to comply with clause 3.2 of this Agreement.

  4. ORDERS

    4.1. The issue of a Purchase Order by Reseller to Arrow ECS constitutes an offer by Reseller to purchase the Goods and/or Services described in the Purchase Order on the terms and conditions of this Agreement. Reseller understands that all Purchase Orders are subject to acceptance by Arrow ECS and there is nothing obligating Arrow ECS to accept a Purchase Order in whole or in part. Arrow ECS shall only notify Reseller where a Purchase Order is not acceptable.

  5. CHANGES, CANCELLATION AND RESCHEDULING ORDERS

    5.1.     Reseller accepts that Arrow ECS is not obligated to accept any modifications or cancellations to a Purchase Order once accepted by Arrow ECS. Modifications and cancellations to a Purchase Order shall only be valid where Arrow ECS has provided Reseller with written acceptance of such modification or cancellation.
    5.2.     Modifications and cancellations may be subject to Additional Charges as specified by Arrow ECS.
  6. DELIVERY

    6.1. Unless otherwise agreed in writing between Arrow ECS and the Reseller, the Goods and/or Services shall be delivered to the address stated on the Purchase Order. Where the Reseller has agreed to partial delivery, Arrow ECS shall deliver the Goods in instalments in accordance with the delivery dates as advised by Arrow ECS.
    6.2. Reseller acknowledges that delivery dates provided by Arrow ECS to Reseller are estimates only. Arrow ECS will use reasonable endeavours to supply the Goods and/or Services by the date specified. Arrow ECS shall not be liable for any delay for reasons beyond its control. Both parties agree that a failure or a delay in delivery shall not constitute a breach of an essential term or other term under this Agreement, and Arrow ECS shall not be liable for any loss, damage or delay suffered or incurred by Reseller or any Third Party for a failure or delay to supply the Goods and/or Services by the delivery date, or failure to give notice of any delay or error.
    6.3. Reseller is not relieved of its obligation to accept or pay for the Goods by reason of a delay in delivery.
    6.4. Arrow ECS shall use reasonable endeavours to keep Reseller informed of any delay or potential delay, where such delay has been notified to Arrow ECS.
    6.5. Delivery and risk of Goods shall be Ex Works Arrow ECS’s warehouse (Incoterms 2020). Reseller is responsible for insurance, transportation costs and all other ancillary costs associated with the delivery of the Goods to Reseller's nominated delivery site. Reseller is responsible for organising insurance coverage, transportation costs and all other ancillary costs associated with the delivery of the Goods from Reseller’s point of delivery to any other location.

  7. RISK OF LOSS

    7.1. Risk in all Goods shall pass to Reseller immediately upon:
       7.1.1. Departure of Goods from Arrow ECS’s warehouse for delivery to Reseller or End User (where the Goods are delivered to the End User’s address), Reseller’s agent or into Reseller’s custody or control; or
       7.1.2. collection by Reseller, or Reseller’s nominated carrier or agent.

  8. INSPECTION AND ACCEPTANCE

    8.1. Reseller must in the case of Goods (other than software Goods) inspect such Goods upon delivery to Reseller or End User (where the Goods are delivered to the End User’s address).
    8.2. Reseller must in the case of software Goods, test or inspect such software Goods upon those Goods being delivered to the Reseller or End User (where the Goods are delivered to the End User’s address).
    8.3. Where Reseller has not notified Arrow ECS within seven (7) days of delivery of Goods, Arrow ECS shall have the right to assume that the Goods have been accepted in accordance with this Agreement.

  9. PROPRIETARY RIGHTS

    9.1. Reseller acknowledges and agrees that the provision by or through Arrow ECS of any evaluation copies of any Goods, or of any Goods under licence (whether by Arrow ECS or by a Third Party licensor) will not give Reseller any right, title or interest in any such Goods or related documentation other than as provided for in the relevant End User License Agreement (”EULA”). Except as provided for in the relevant EULA, all other aspects of such Goods and related documentation including without limitation, programs, methods of processing, design and structure of individual programs and their interaction and programming techniques employed therein shall remain the sole and exclusive property of the relevant licensor and shall not be sold, revealed, disclosed or otherwise communicated, directly or indirectly, by Reseller to any person, company or institution whatsoever. In addition, Reseller agrees (i) not to modify or create any derivative work of the evaluation copies of any Goods or of any Goods under licence or any portion thereof; (ii) not to delete, alter, add to or fail to reproduce in or on any copy of the evaluation copies of any Goods or of any Goods under licence and any copyright or other notices appearing in or on any copy, media or master or package materials; (iii) not to reverse assemble, decompile, reverse engineer or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure or organization) from any evaluation copies of any Goods or of any Goods under licence (iv) not to copy any evaluation copies of any Goods or of any Goods under licence or include any portion of any evaluation copies of any Goods or of any Goods under licence in any other software program; (v) not to provide use of any evaluation copies of any Goods or of any Goods under licence in a computer service business, rental or commercial timesharing arrangement; (vi) not to develop any other products containing any of the concepts and ideas contained in any evaluation copies of any Goods or of any Goods under licence that are not readily apparent from normal use of any evaluation copies of any Goods or of any Goods under licence pursuant to the license(s) granted hereunder; and (vii) not to develop methods to enable unauthorized parties to use any evaluation copies of any Goods or of any Goods under licence.
    9.2. All trademarks, brand names and the name of Goods remain the property of their respective owners and/or licensors.
    9.3. Reseller shall not (i) remove, obscure or modify any label or other indication of copyright or other intellectual property rights on the Goods; (ii) duplicate or reproduce any Goods or written material supplied by OEM without the explicit written consent of OEM; nor (iii) re-sell the Goods other than in its original, unmodified and unused condition.
    9.4. Reseller shall not reproduce or redistribute the Goods or, to the extent permitted by law, limit the End User’s liability for violations of an OEM’s intellectual property rights under the EULA.

  10. LICENSE

    10.1. Where the term “supply” or “delivery” is used in this Agreement to refer to Goods that are software (including where software is supplied with the Goods), such terms shall mean the sale and purchase of a licensed copy of that software Good or a right to access a hosted copy of that software Good (regardless of whether such software is supplied in hard copy, electronically, or where access is otherwise provided to a copy of the software).
    10.2. Use of the Goods is governed by the EULA provided to the Reseller with the purchase of the Goods prior to, or upon delivery of the Goods or through on-screen acceptance. Reseller must communicate to End Users the license types applicable to the Goods ordered by the End User and is solely responsible for ensuring that the End User has obtained or will obtain all applicable EULAs to allow End User to use the Goods. Reseller shall obtain the End Users written agreement to the relevant to the relevant license terms.
    10.3. Reseller shall defend and indemnify Arrow ECS (including its bodies corporate, affiliates and each of their respective directors, officers, employees, agents, shareholders and representatives) from and against all claims, actions, losses, liabilities, damages, costs and expenses (including reasonable legal fees) arising out of or in connection with Reseller’s failure to comply with clauses 9 and 10 under this Agreement.

  11. TITLE TO THE GOODS

    11.1. Notwithstanding the delivery of the Goods to the Reseller (or End User as the case may be), the Goods remain the sole and absolute property of Arrow ECS as full legal and/or equitable owner until such time as Reseller has paid Arrow ECS the Purchase Price and any other sums stated under the invoice. Until such date, the Reseller holds the Goods as bailee for Arrow ECS.

  12. EXPORT RESTRICTIONS

    12.1. Reseller will obtain all licenses, permits and approvals required by any government and will comply with all applicable laws, rules, policies and procedures of the New Zealand Government to allow for the purchase and re-sale of the Goods. Reseller will indemnify and hold harmless Arrow ECS (including its bodies corporate, affiliates and each of their respective directors, officers, employees, agents, shareholders or representatives) for any violation or alleged violation by Reseller of such laws, rules, policies and procedures.
    12.2. Where OEM is domiciled in the United States or France, Reseller understands and acknowledges that all obligations by Arrow ECS to deliver and all Reseller’s obligations to accept and sell Goods and sublicense software Goods at locations outside the United States or France are subject to applicable export control laws. Reseller agrees to cooperate in providing the information and assistance requested by OEM in connection with export licences and approvals. Reseller shall comply fully with all applicable laws relating to export and re-export of the Goods and Reseller agrees not to sell any Goods covered by this Agreement to anyone else, if the sale would constitute a violation of any laws or regulations of the United States or France.

  13. PRICING AND PAYMENT

    13.1. Subject to clause 13.2, Reseller is required to pay Arrow ECS the Purchase Price plus any Additional Charges as stipulated under the invoice within thirty (30) days, or as otherwise stated under the Confirmation of Credit Terms provided to Reseller upon application.
    13.2. Arrow ECS shall issue Reseller with a pro-forma invoice where Reseller is on a pre-paid account. All pre-paid accounts must be paid within seven (7) days from the date the pro-form invoice is sent to Reseller. Arrow ECS shall not deliver the Goods and/or Services to Reseller, until full payment of the Purchase Price has been received by Arrow ECS.
    13.3. Payments to Arrow ECS may be made by way of company cheque, electronic funds transfer (“EFT”), B-Pay or credit card.
    13.4. Reseller does not have any set-off rights under this Agreement.

  14. CREDIT TERMS

    14.1. If Arrow ECS has approved Reseller’s application for credit under the Confirmation of Credit Terms, Arrow ECS in its sole discretion will assign Reseller a maximum credit line and will have the right to increase, decrease or cancel the Reseller’s Confirmation of Credit Terms at any time without prior notice to Reseller where Reseller has breached the Confirmation of Credit Terms or is in default of payment. Arrow ECS may from time to time, without assigning any reason, refuse to extend any further credit.
    14.2. To the extent that Reseller has received approval under the Confirmation of Credit Terms, Reseller agrees to immediately notify Arrow ECS of any changes to any of its details contained in the Confirmation of Credit Terms application or as otherwise provided by Reseller to Arrow ECS, and any other material changes to Reseller’s ownership, shareholding, structure and/or business, trading or financial activities.

  15. TAXES AND DUTIES

    15.1. Reseller is responsible for the payment of GST for the sale of the Goods and/or Services it acquires under this Agreement.
    15.2. GST shall be shown separately under the invoice or pro-forma invoice.

  16. DEFAULT PAYMENT

    16.1. Reseller’s payment of an amount less than the Purchase Price stated on the invoice will not be deemed as acceptance of payment.
    16.2. Where Reseller fails to pay the Purchase Price stated on the invoice or pro-forma invoice (as the case may be), Reseller shall be in default of its payment obligations under this Agreement entitling Arrow ECS in its sole discretion to, with or without notice, do any or all of the following:
       16.2.1. reject or not accept any further Purchase Orders for any Goods and/or Services;
       16.2.2. require Reseller to recover the Goods from its location (including the End User’s location), and deliver to the address indicated by Arrow ECS;
       16.2.3. cancel or amend any credit terms under the Confirmation of Credit Terms as anticipated under clause 14;
       16.2.4. In the event that the Reseller uses the Goods in some manufacturing or construction process of its own or some Third Party, then the Reseller must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Arrow ECS. Such part will be an amount equal in dollar terms to the amount owing by Reseller to Arrow ECS at the time of the receipt of such proceeds. The Reseller will pay Arrow ECS such funds held in trust upon the demand of Arrow ECS.

  17. INCORRECT INVOICES AND CREDIT ADJUSTMENTS

    17.1. Reseller shall be entitled to a credit upon the request of Reseller where Reseller has made an overpayment to Arrow ECS. Where a credit adjustment is available under Arrow ECS’s applicable policy, such adjustment may be applied against existing Reseller account balances.

  18. RETURNS

    18.1. Reseller may return Goods purchased from Arrow ECS and receive a credit of the Purchase Price, on the precedent condition that the following having been met:
       18.1.1. the Goods for return have been issued a CRMA number;
       18.1.2. the Goods are returned to Arrow ECS within seven (7) days of the invoice date;
       18.1.3. the list price of the Goods has not changed;
       18.1.4. the Goods are new and unused, have not been added to, varied or otherwise modified;
       18.1.5. the Goods are in their original package and not damaged (where the Reseller alleges that the Goods have been damaged in transit, Reseller will need to provide evidence of the Proof of Delivery (POD)); and
       18.1.6. Arrow ECS determines in its sole judgement that Reseller is of good standing.
    18.2. Goods returned under clause 18.1 will be subject to a restocking charge of 15%.
    18.3. Defective Goods will be issued with a TRMA number.
    18.4. Defective Goods will be returned to OEM as per their standard warranty and returned when repaired.

  19. WARRANTIES

    19.1. All Goods and Services are covered by OEM’s warranty. To the full extent permitted by law and subject to clause 19.3, Arrow ECS’s entire responsibility with respect to warranties for the Goods is to pass on to Reseller the benefit of any such OEM’s warranty that is provided to Arrow ECS for such Goods and/or Services.
    19.2. Reseller warrants to Arrow ECS that it is acquiring the Goods and/or Services for the purpose of resale within Reseller’s course of business, and that it is not purchasing the Goods and/or Services wholly or predominantly for personal, domestic or household use or consumption.
    19.3. In the event that the Goods are subject to a Consumer Guarantee as defined in the Consumer Guarantees Act (CGA), nothing in this Agreement excludes, restricts or attempts to modify any condition, warranty or other obligation in relation to the Goods supplied hereunder. The following statement shall apply where the Goods are deemed to be a consumer sale to Reseller by Arrow ECS under the New Zealand Consumer Law: Our goods come with guarantees that cannot be excluded under the CGA. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

  20. EXCLUSIONS

    20.1. Reseller acknowledges by entry into this Agreement that no promise, representation, warranty or undertaking whether implied or otherwise, has been made or given by Arrow ECS or any person on its behalf in relation to the provision of the Goods and/or Services, except as set out in this Agreement. Reseller undertakes and warrants that it has relied on its own skill and judgement in its decision to acquire the Goods and/or Services.
    20.2. To the full extent permitted by law, where the benefit of any condition, warranty or other obligation pursuant to the New Zealand      Consumer Law or similar legislation is so conferred upon the Reseller, Arrow ECS’s sole responsibility for breach of any such condition, warranty or other obligation shall be limited (except as otherwise set forth herein) at Arrow ECS’s discretion to: (a) the replacement or cost of replacing the goods and/or services; (b) repairing or the cost of repairing the goods and/or services or (c) the re-supply or the cost of having the goods and/or services re-supplied (collectively known as “Available Remedies”). 
    20.3. Arrow ECS will not have any liability for: (a) failure to deliver Goods within a specified time period; (b) availability and/or delays in the delivery of the Goods; (c) discontinuation of Goods, products lines or part thereof; (d) cancellation of any Purchase Order by OEM; and (e) arising from or relating to any actual or alleged violation or infringement of any patent, trademark, copyright or other intellectual property belonging to the OEM by the Goods.
    20.4. To the extent permitted by law, all prior discussions, quotations, other warranties whether implied or otherwise not set out in this Agreement are excluded and Arrow ECS is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Reseller or any Third Party for any loss of data, loss of profits, loss of anticipated savings, economical loss or interruption of business, loss of use, loss of opportunity, of for any indirect, direct, consequential, special loss, whether or not Arrow ECS has been advised of the possibility of such damage or expense.

  21. LIABILITY

    21.1. Reseller shall be liable to Arrow ECS for all Purchase Orders placed on Arrow ECS, regardless of whether those Purchase Orders were not placed in accordance with Reseller’s authorisations or instructions. It is Reseller’s responsibility to ensure that its account is only accessed and used by Reseller’s authorised personnel, pursuant to and in accordance with, any limits on their authority and safeguarded from misuse by authorised or unauthorised individuals.
    21.2. Reseller is liable for, and will defend, indemnify and hold harmless Arrow ECS, its related bodies corporate, affiliates, and each of their respective officers, directors, employees and agents from and against any claims, demands, proceedings, actions, liabilities, losses (including indirect, direct, consequential and special loss), damages, cost or expenses of any kind (including reasonable legal fees) incurred or sustained as a result of, or arising out of, or relating to any unauthorised actions taken by Reseller, in the manner in which the Reseller markets the Goods and/or Services, or any breach of any applicable laws or regulations relating to the storage, marketing or sale by Reseller of the Goods and/or Services.
    21.3. The only liability of Arrow ECS with respect to any damaged goods, defective goods, or Goods that are erroneously delivered with be the return rights described herein under clause 18.
    21.4. If notwithstanding the above, Arrow ECS is found liable to Reseller or any Third Party, Arrow ECS’s total liability for any claim or series of claims arising out of the same occurrence, or series of occurrences in connection with this Agreement (which includes a Purchase Order) shall not exceed the value of the amount equal to the price paid by Reseller to Arrow ECS during the last six (6) month period preceding the event or circumstances giving rise to the liability.

  22. PERSONAL PROPERTY SECURITIES ACT 1999 (CTH) (“PPSA”)
    22.1. Defined terms in this clause have the same meaning as given to them in the PPSA.
    22.2. If Arrow ECS already has a security interest in the Goods that it supplies to the Reseller, then that security interest shall continue under this Agreement.
    22.3. Where clause 22.2 is not applicable, Arrow ECS and the Reseller acknowledge that this Agreement constitutes a Security Agreement and entitles Arrow ECS to claim a Purchase Money Security Interest (“PMSI”) in favour of Arrow ECS over the Collateral supplied or to be supplied to the Reseller as Grantor pursuant to this Agreement.
    22.4. The Goods supplied or to be supplied under this Agreement fall within the PPSA classification of “Other Goods” acquired by the Reseller and/or End User pursuant to this Agreement
    22.5. Arrow ECS and the Reseller acknowledge that Arrow ECS, as a Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to Reseller, as Grantor, under this Agreement on the PPSA Register as Collateral.
    22.6. To the extent permissible at law, the Reseller:
       22.6.1. waives its right to receive notification of, or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Reseller, as Grantor, to Arrow ECS;
       22.6.2. agrees to indemnify Arrow ECS on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
          a) registration or amendment or discharge of any Financing Statement registered by or on behalf of Arrow ECS;
          b) enforcement or attempted enforcement of any Security Interest granted to Arrow ECS by the Reseller.


  23. DISPUTE RESOLUTION

    23.1. If a dispute arises in connection with this Agreement, a party to the dispute may give to the other party to the dispute notice specifying the dispute and requiring its resolution (“Notice of Dispute”).
    23.2. If the dispute is not resolved within seven (7) days after the Notice of Dispute is given to the other party, each party to the dispute must nominate one (1) representative from its senior management (“Representative”) to resolve the dispute.
    23.3. If the dispute is not resolved within seven (7) days of the dispute being referred to the Representative (“First Period”), the dispute must be submitted to mediation as set out in this clause.
    23.4. If the parties have not agreed on the mediator and the mediator's remuneration within seven (7) days after the First Period:
       23.4.1. a mediator will be appointed by the President of the Law Society of New Zealand (“President”); and
       23.4.2. the remuneration of the mediator will be the amount or fee determined by the President or the President's nominee,
    acting on the request of any party to the dispute.
    23.5. The mediation must be conducted in New Zealand.
    23.6. The parties must pay the mediator's remuneration in equal shares. Each party must pay its own costs of the mediation.
    23.7. If the dispute is not resolved within twenty-eight (28) days after the appointment of the mediator, the parties will be free to commence court proceedings.
    23.8. Nothing in this clause diminishes the obligations of the Reseller to pay by the due date, debts to Arrow ECS other than those debts specifically the subject of the Notice of Dispute.
    23.9. This clause does not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a court, which may be urgently required.

  24. CONFIDENTIALITY
    24.1. Reseller acknowledges and agrees that it may have access to, or acquire Confidential Information of Arrow ECS by reason of this Agreement, and agrees to observe the confidentiality obligations as required under this clause for all Confidential Information it receives.
    24.2. Each party acknowledges that all information disclosed (verbally and written) as a result of this Agreement shall be “Confidential Information” and the receiving party (“Receiving Party”) agrees to maintain all such Confidential Information received from the disclosing party (“Disclosing Party”) in whatever medium it is disclosed in, in strict confidence, and may only use the Confidential Information for the performance of its obligations under this Agreement.
    24.3. The Receiving Party shall not disclose or otherwise make available such Confidential Information to any Third Party without the prior written consent of Arrow ECS.
    24.4. Subject to the provisions of this Agreement, the Receiving Party may disclose the Confidential Information:
       24.4.1. to those of its employees, permitted sub-contractors, consultants, auditors and professional advisers that have a need to know the Confidential Information for the purposes of this Agreement; or
       24.4.2. Where it is required to do so under a law or judicial order, provided however, that the Receiving Party provides the Disclosing Party with prior written notice of such disclosure.

  25. NON-SOLICITATION

    25.1. Reseller shall not without Arrow ECS’s prior written consent during the term of this Agreement and for twelve (12) months following termination (however termination occurs), solicit or endeavour to entice away any employee from Arrow ECS to Reseller.

  26. NON-DISPARAGEMENT

    26.1. During the term and thereafter, Reseller agrees not to take any action which is intended to, or would reasonably be expected to, harm Arrow ECS or its reputation, or which would reasonably be expected to lead to unwanted or unfavourable publicity to Arrow ECS.

  27. PRIVACY

    27.1. Both Parties shall comply with all their obligations under the New Zealand Privacy Act 2020 in relation to all Personal Information (given the meaning ascribed to it under the Privacy Laws) that is collected by it, or on behalf of a Third Party in connection the Privacy Laws.
    27.2. Reseller acknowledges that Arrow ECS may collect Personal Information in connection with this Agreement in accordance with the Privacy Laws, Arrow ECS’s Privacy Policy and any of its applicable Privacy Statements, and Reseller consents to the Personal Information being collected by Arrow ECS as required. A copy of Arrow ECS’s Privacy Policy, which may be amended from time to time, can be accessed on its website or can be given upon written request.
    27.3. Reseller shall only undertake processing of Personal Information in connection with the performance of its obligations under this Agreement and for the purposes expressly authorised by the End User. The Reseller shall comply with all requests from the End User from time to time in relation to such processing, including any request from the End User requiring the Reseller to amend, transfer or delete the End User Personal Information
    27.4. Reseller warrants that it has taken all steps necessary, and has ensured that its agents, contractors and End Users have taken all steps necessary (including providing privacy policies/statements to and obtaining privacy consents from relevant individuals) to ensure that Arrow ECS and its third party contractors are able to access and process (both within and outside New Zealand) the Personal Information in compliance with all applicable legislation, principles, industry codes and policies which Arrow ECS and third parties are bound by. In particular, Reseller warrants in relation to any Personal Information that it provides to Arrow ECS that the individual to whom the information relates has consented to the collection of that information and to passing of that information to Arrow ECS for the purpose of Arrow ECS further communicating with the individuals in relation to Arrow ECS’s services and business activities
    27.5. Reseller agrees to indemnify and keep indemnified, Arrow ECS against all claims, proceedings and all liability, loss, costs and expenses incurred in connection therewith, as a result of any claim made or brought by a Third Party in respect of any loss or damage caused to a Third Party as a result of the Reseller’s failure to comply with their obligations under the Privacy Laws or under this Agreement.

  28. NOTICES

    28.1. Each Notice to be provided under this Agreement must be in writing. Such Notices shall be sent to:
            Arrow ECS New Zealand Limited
            Level 2, MasterCard House
            136 Customs Street
            West Auckland Viaduct 1010, New Zealand

  29. TERMINATION

    29.1. Either party may terminate this Agreement for convenience by providing the other with sixty (60) days’ Notice of its intention to do so. Such Notice shall state the terminating party’s reason for termination. In the event Arrow ECS terminates for convenience, Reseller acknowledges that it will not be entitled to any compensation, loss of profits or any other consequential loss, and hereby waives claims for lost profits and all other damages and expenses, including any consequential loss or damage.
    29.2. Arrow ECS shall be entitled to terminate this Agreement immediately upon its discretion for a Change of Control of Reseller.
    29.3. Both parties shall have the right to terminate this Agreement immediately where either party ceases to carry on business or suffered an Insolvency Event.

  30. FORCE MAJEURE

    30.1. Other than with respect to payment obligations hereunder, neither party will be responsible for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays, fire, floods, earthquakes (“Force Majeure Event”), so long as the affected party provides the other party with prompt written notice describing the Force Majeure Event and immediately continues performance once the Force Majeure Event has been removed or stopped.

  31. CLOUD-BASED OFFERING NOTICE

    31.1. If the Resellers wishes to purchase a Cloud-Based Offering, it agrees and undertakes to comply with the Arrow ECS CloudSelect Marketplace Agreement terms and conditions as well as the Cloud Vendor’s applicable terms as amended from time to time. Reseller is responsible for its Cloud Provider’s selection, including but not limited to assessing Cloud Provider’s services, compliance and security.

  32. GENERAL

    Arrow ECS and Reseller are independent contractors and both parties agree that no partnership, joint venture, or agency relationship exists between the parties. Additionally, Reseller acknowledges that is not the agent of or representative of Arrow ECS for any purpose whatsoever and is not granted, under this Agreement or otherwise, any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of Arrow ECS or to bind Arrow ECS in any manner whatsoever.
    32.2. This Agreement is governed by the substantive and procedural laws of New Zealand, and Reseller and Arrow ECS agree to submit to the exclusive jurisdiction of, and venue in, the courts of New Zealand in any dispute arising out of or relating to this Agreement.
    32.3. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.
    32.4. Except for actions for non-payment or breach of the OEM’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either Party more than two (2) years after the cause of action has accrued.
    32.5. The Goods or Services provided under this Agreement are not intended for use in nuclear facilities or hazardous applications. Reseller warrants that the Reseller is not purchasing the Goods to be used for any other purposes other than the intended purpose for which they were designed for by the OEM and in accordance with the EULA and any other documentation supplied by the OEM.
    32.6. Reseller shall obtain at its sole expense any rights and consents from Third Parties as is necessary under this Agreement to allow Reseller to transact with Arrow ECS. Reseller agrees to provide Arrow ECS with all information, access and full good faith and cooperation reasonably necessary to enable Arrow ECS to provide the Goods and/or Services.
    32.7. Reseller remains solely responsible for its regulatory compliance in connection with its use or resale of the Goods and/or Services. Reseller shall comply with all laws and regulations, including the payment of all fees and taxes and maintaining all licences and permits, applicable to this Agreement.
    32.8. No waiver of any of term or condition or failure to exercise a right or remedy by Arrow ECS will be considered to imply or constitute a further waiver by Arrow ECS of the same or any other term, condition, right or remedy. Arrow ECS shall be entitled to invoke any of its rights under this Agreement and at law cumulatively at its will.
    32.9. The purchase of Goods and/or Services or any other goods or service offering available by Arrow ECS are all separate offers upon Arrow ECS. Reseller’s obligation to pay a Purchase Order under this Agreement shall affect its right to make purchases under the Arrow ECS CloudSelect Marketplace, Professional Services or other service offering.

Last updated: 9 November 2022