CARTERS Terms of Supply 

1.     General

1.1   A supplier who supplies Goods or Services to Carters will be deemed to have accepted the terms of this Agreement.

1.2   This Agreement constitutes the entire agreement between the parties relating to the supply of the Goods and Services by the Supplier to Carters.  All other agreements, understandings and representations relating to the supply of Goods and Services by the Supplier to Carters cease to have any effect.  

2.    Definitions and interpretation

In this Agreement (including the General section above), unless the context requires otherwise:

2.1   Definitions

“Agreement” includes these Terms of Supply, the Trading Terms and the Service Level Framework and the Carters’ Supplier Submission Form for Promotional Materials.

“Applicable Law” means all applicable legislation, regulations, bylaws, codes, standards and any other applicable rules (statutory or otherwise) in force from time to time, including the Health and Safety at Work Act 2015, the Resource Management Act 1991, the Building Act 2004 and the Human Rights Act 1993.

“Business Day” means a day on which Carters is open for business, other than a Saturday, Sunday or public holiday for a particular Carters branch.

“Carters” means Carters Building Supplies Limited, including its successors and assigns.

“Carters’ Supplier Submission Form for Promotional Materials” means the agreement between Carters and the Supplier governing the Supplier’s submissions of advertising materials for any Carters marketing publications, as provided by Carters to the Supplier from time to time.

“Commencement Date” means the ‘Commencement Date’ specified in the Trading Terms or, if there are no Trading Terms, when supply commences from the Supplier.

“Delivery Address” means the delivery address specified in an Order or otherwise notified to the Supplier by Carters in writing from time to time (which may be, without limitation, a Carters branch or Carters customer’s address).

“Delivery Date” means the date (and, if applicable, time) for delivery specified in an Order or otherwise agreed between the Supplier and Carters from time to time.

“Force Majeure Event” means any event or occurrence beyond the control of the relevant party and which the relevant party could not take reasonable measures to prevent or mitigate the effects of.

“Goods” means all goods and services ordered by Carters from the Supplier in accordance with this Agreement.

“Initial Contract Term” means the ‘Initial Contract Term’ specified in the Trading Terms (if applicable).

“Insolvency Event” means in respect of a party to this Agreement (other than for the purpose of solvent reconstruction or amalgamation):

(i)    a receiver, receiver and manager, liquidator, provisions liquidator, trustee, administrator, controller, inspector appointed under any companies or securities legislation, or similar official is appointed in respect of that party or any of its property, or any security over any substantial part of its assets is enforced;

(ii)    the party ceases to carry on all or substantially all of its business, is unable to pay its debts when due, or is deemed unable to pay its debts under any law, or makes an assignment for the benefit of, or enters into or makes any arrangement or compromise with, that party’s creditors or threatens to do so, or stops payments to its creditors generally;

(iii)    the party is, becomes, or is deemed to be insolvent or bankrupt;

(iv)    a distress, attachment or other execution is levied or enforced upon or commenced against any substantial party of its assets and is not stayed within 14 days;

(v)    anything having a similar effect to any of the events specified above happens under the law of any applicable jurisdiction; or

(vi)    in the event that the party is an individual, anything having a similar effect to any of the events specified above happens in respect of that individual.

“Intellectual Property” includes, without limitation, all rights to, and any interests in, any patent, design, trade mark, copyright, know-how, trade secret and any other proprietary right or form of intellectual property (whether protectable by registration or not), customer list, agency agreement, purchase agreement, specification, formula, drawing, programme, design, system, process, logo, mark, or style.

“Net Price” means the cost of the Goods payable by Carters after any applicable deduction from the Price, including any rebates, prompt payment discounts, promotional discounts or any other support or incentives provided by the Supplier.   

“Price” means the invoice price for Goods as specified in Schedule A of the Trading Terms (if applicable) or otherwise agreed, as varied from time to time by Carters and the Supplier in accordance with clause 5.

“Order” means any written request from an authorised Representative of Carters to the Supplier to supply Goods pursuant to this Agreement.

“Related Company” has the meaning given in section 2(3) of the Companies Act 1993, provided that any reference in that section to a “company” includes any body corporate (wherever incorporated).

“Renewal Term” means the ‘Renewal Term’ specified in the Trading Terms (if applicable).

“Representative” means, in respect of a party, its directors, officers, employees, agents, advisors and sub-contractors (as applicable).

“Root Cause Analysis Report” means a report relating to defective Goods which shall include the details set out in clause 9.2;
"Services" means all services (including any Goods provided by or on behalf of the Supplier in connection with such services) ordered by Carters from the Supplier in accordance with this Agreement.

“Service Level Framework” means the service level framework attached to these Terms of Supply, or otherwise provided to the Supplier by Carters, as updated by Carters upon notice to the Supplier from time to time.

“Service Level Requirements” means the service level requirements set out in the Trading Terms (if applicable).

“Site Rules” means the various rules, policies and procedures adopted by Carters relating to any of its sites, including those relating to health, safety and environmental and risk management (as notified by Carters to the Supplier from time to time).
“Supplier” means the person described as the Supplier in the Trading Terms.

“Trading Terms” means any specific trading terms attached to these Terms of Supply or otherwise agreed in writing between Carters and the Supplier whether prior to or after the Commencement Date.

“Warranty” means a warranty contained in clause 13.

2.2   A reference to a statute includes amendments to that statute and any statute to the extent passed in substitution for that statute.

2.3   A reference to a clause is to a clause of this Agreement.

2.4   All references to “including” shall be construed to mean “including without limitation”.

2.5   The singular shall include the plural and vice versa. 

2.6   Headings shall not affect the interpretation of this Agreement. 

2.7   All amounts are exclusive of goods and services tax payable under the Goods and Services Tax Act 1985. 

2.8   In the event of any inconsistency between these Terms of Supply, the Trading Terms, the Service Level Framework, the Carters’ Supplier Submission Form for Promotional Materials and an Order, unless the parties expressly agree otherwise, the following order of precedence shall apply:

(a)    the Trading Terms;

(b)    these Terms of Supply;

(c)    the Service Level Framework; 

(d)    Carters’ Supplier Submission Form for Promotional Materials; and 

(e)    an Order. 

3.     Term of this Agreement

3.1   This Agreement will commence on the Commencement Date and remain in force:

(a)    for the Initial Contract Term and any Renewal Term (if applicable), subject to the remainder of these Terms of Supply; or

(b)    until terminated in accordance with these Terms of Supply if an Initial Contract Term has not been agreed. 

3.2   At the expiry of the Initial Contract Term (if applicable), if neither party has given notice to terminate this Agreement pursuant to clause 3.4, this Agreement shall automatically renew for the Renewal Term.

3.3   If, at the end of the Renewal Term (or, if there is no applicable Renewal Term, at the end of the Initial Contract Term), neither party has given notice to terminate pursuant to clause 3.4, this Agreement will continue on the same terms and conditions, until either party gives the other party 3 month’s prior written notice of termination.  Any rebates, marketing co-op contribution and incentives in place at the end of the Renewal Term or Initial Contract Term (as the case may be) will continue to apply on a pro rata basis until termination.

3.4   This Agreement may be terminated:

(a)    with effect from the end of the Initial Contract Term or relevant Renewal Term (if applicable) by either party giving the other party not less than 3 months’ notice prior to the end of the Initial Contract Term or any Renewal Term;

(b)    by Carters giving the Supplier not less than 3 months’ notice in writing at any time; 

(c)    by either party in accordance with clause 16; or

(d)    following the expiry of the Initial Contract Term or Renewal Term (if applicable) in accordance with clause 3.3.

4.    Orders, Delivery and Stock Levels

4.1  Carters may purchase Goods from the Supplier under this Agreement by submitting an Order to the Supplier.   

4.2  An Order shall specify the Goods ordered and a Delivery Date, which shall not impose a delivery timeframe that is less than the delivery timeframes specified in the Trading Terms.   

4.3  Carters may cancel an Order upon notice to the Supplier prior to despatch of the Order.

4.4  The Supplier will deliver Goods specified in an Order to the Delivery Address on the Delivery Date during Carters normal business hours.  

4.5  All deliveries of Goods must include an order number issued by Carters relating to the applicable Order.

4.6  Delivery of Goods will be deemed to have taken place at the time that an authorised Representative of Carters or, in the case of Orders delivered directly to the Carters customer’s site, the Carters customer, has signed the proof of delivery to acknowledge receipt. Such signature shall not prevent Carters from rejecting any goods pursuant to clause 8.

4.7  All Goods delivered must be adequately packaged and secured in a manner that ensures that the Goods are delivered to Carters in an undamaged condition and comply with Carters’ delivery instructions notified to the Supplier by Carters from time to time and also comply with any applicable requirements or regulations required by the carrier.    

4.8  All Goods delivered must be accompanied with a prominently displayed packing note which matches the Order and states the Order number, a description of the Goods and the quantity of the Goods.

4.9  Where any Goods are incorrectly delivered to an address which is different to the Delivery Address, any cost incurred to transfer the Goods to the correct Delivery Address will be the responsibility of the Supplier.  

4.10  Time is of the essence in respect of delivery of Goods.  If the Supplier experiences difficulty in fulfilling an Order (in whole or in part) by the Delivery Date, the Supplier will notify Carters and the relevant site in writing as soon as reasonably practicable, use its best endeavours to fulfil the applicable Order as soon as reasonably practicable and keep Carters and the relevant site updated on the anticipated revised Delivery Date.

4.11  Carters may refuse to accept or pay for back orders, unless the back orders have been agreed to by Carters in writing. Where Carters has agreed to a back order, the Supplier will advise Carters and the relevant site of the date of the initial delivery and the date that the remainder of the Order will be delivered.  In the event that Carters agrees to multiple deliveries or back orders, the costs associated with delivery will be at the Supplier’s expense.

4.12  Where the Supplier is unable to supply a particular Good that is specified in an Order, the Supplier may instead fulfil the Order by supplying a Good which is substantially similar (Substitute Good), if:

(a)    the relevant site has provided consent to the supply of the Substitute Good; and

(b)    an updated Order is submitted to the Supplier by the relevant Carters site which includes both the Substitute Good and the price for the Substitute Good (which must be equal to or less than the Price of the original Good). 

4.13  The Supplier will provide Carters with information in relation to Goods and with such assistance with planning Carters’ product range and marketing as Carters may request from the Supplier from time to time.  

4.14  The Supplier will hold a reasonable quantity of reserve stock or make other arrangements necessary to ensure that the Supplier is capable of fulfilling Orders, including in the event that there is a disruption in the supply of Goods to the Supplier and during any potential supplier close-down periods such as public holidays.

4.15  Carters does not undertake to, nor warrant that it will, purchase any minimum quantity of Goods from the Supplier.

4.16  Nothing in this Clause 4 relieves the Supplier of its obligations to meet Orders in full, on time and in specification.

5.    Pricing and Promotions

5.1  Carters will pay the applicable Price for Goods ordered by Carters and supplied by the Supplier in accordance with this Agreement, provided that the Goods are supplied to the required standard. For the avoidance of doubt, the Price for the Goods includes all applicable costs, including freight, packaging, insurance costs.  Unless agreed otherwise in writing, Carters is not responsible for any fees or charges, other than the Price, in relation to the Goods. 

5.2  The Supplier will ensure that the Prices for the Goods do not, and will not during the Term, exceed the lowest Net Prices or the lowest Prices offered to any other customers of the Supplier who are purchasing a similar volume of goods which are substantially similar to or the same as any of the Goods from the Supplier.  If, during the Term, the Supplier supplies Goods substantially similar to any of the Goods to any third party and charges that third party a Net Price or a Price less than the Net Price or Price applicable to such Goods, the Supplier must offer such lower Net Price or Price to Carters and promptly credit Carters for the difference between the Net Price or Price (as applicable) and the lower Net Price or Price (as applicable) for all sales of those Goods for the period during which the Supplier was supplying the third party at the lower price.

5.3  Carters may at any time undertake price benchmarking to ensure market competitive Net Pricing and Pricing for Carters.  If, following the benchmark exercise, Carters notifies the Supplier that Carters is able to purchase Goods which are substantially similar to or the same as any of the Goods at Net Prices or Prices which are lower than the Net Prices and/or Prices payable by Carters under this Agreement, Carters may give the Supplier the opportunity to price match within 10 days of the notice.

5.4  Carters and the Supplier may from time to time agree to discounted prices for certain Goods in respect of promotions relating to such Goods. Once the discounted pricing is agreed, such discounted prices will be effective from the 22nd day of the month preceding the actual promotional period until the 7th day of the month following the end of the promotional period, unless otherwise agreed.  If any store runs out of the applicable Goods, the Supplier must make available sufficient Goods, at the discounted price, to meet all Orders made by the store customers during the promotional period.  

5.5  The Supplier must give written notice of any increases to pricing to Carters no less than 90 days prior to the new pricing taking effect. When proposing a Price change, the Supplier must provide the proposed price increases and justification for the proposed price increase.  Within 30 days of such notice the Supplier must send Carters a price file containing Supplier part codes, Carters price codes, product descriptions, unit of measure and the new pricing. Notwithstanding anything else in this Agreement, no price increase will take effect during the months of December and January such that any price increase notified to take effect during these months will be automatically deferred and deemed to take effect on 1 February. The Supplier shall reimburse Carters on demand for the actual third party costs incurred by Carters in communicating a price increase to its customers. Any notice given by the Supplier under this clause must only be emailed to carters.procurement@carters.co.nz.

5.6  The Supplier and Carters may, from time to time, negotiate alternative prices for Carters’ national customers and/or volume builders.

5.7  The parties may agree from time to time that Goods supplied to Carters by the Supplier will be used for the purpose of product displays in Carters branches (Display Goods). The Supplier will apply a 50% discount to the Price of all Goods supplied during the period in which the Goods are Display Goods.

5.8  The Supplier and Carters shall enter into a Carters’ Supplier Submission Form for Promotional Materials prior to the inclusion of any advertising material of the Supplier in Carters’ marketing publications.

6.    Payment 

6.1  The Supplier will submit monthly GST invoices to Carters in respect of Goods supplied during the preceding month. 

6.2  Carters shall not be required to pay the Supplier’s invoices in respect of any Goods that have not been received and receipted by Carters.

6.3  Invoices will not be payable by Carters unless the invoice specifies the amount payable and includes reasonable detail of the Goods supplied during the relevant period, including sufficient detail to identify the:

(a)   Carters Representative who accepted the Goods;

(b)   Order number, clearly printed and identical to the Order;

(c)   a description of the Goods and the quantity of the Goods;

(d)   date of Order, Delivery Date and date of actual delivery;

(e)   site from which, or in respect of which, the Order was made;

(f)    Delivery Address to which the Goods were delivered;

(g)   unique invoice number;

(h)   invoice date; and

(i)    Supplier GST number.

6.4  Carters will pay the Supplier’s invoices on the 30th of the month following the month of receipt of invoice or as otherwise agreed in the Trading Terms (unless there is a dispute on cost), provided that the applicable Goods are supplied to the required standard. 

6.5  Carters may deduct or withhold from any amount that it owes to the Supplier (whether under this Agreement or otherwise) an amount equal to the aggregate of:

(a)   any payment made to the Supplier in excess of what was due and payable under this Agreement at the time of payment; 

(b)   any amount payable by the Supplier to Carters, and any amount claimed by Carters, under or in connection with this
Agreement (including in connection with returned Goods pursuant to clause 8.7); and

(c)   any amount payable by the Supplier to a Related Company of Carters under or in connection with any agreement or contract between the Supplier and such Carters Related Company. 

For the purposes of the Contract and Commercial Law Act 2017, Part 2, Subpart 1 (Contractual Privity), clause 6.5(c) is intended to confer a benefit on each such Related Company of Carters and may be relied upon and enforced by each such Related Company.

6.6  Any rebates payable to Carters will be payable in accordance with the Trading Terms or as otherwise agreed in writing by Carters.

7.    Ownership and Risk

7.1  Legal and beneficial ownership (ownership) in all Goods will pass from the Supplier to Carters upon delivery pursuant to clause 4.6, except where payment is made prior to delivery, in which event ownership will pass as soon as payment is made.

7.2  Without affecting the right of Carters to reject any Goods under clause 8, risk in all Goods will pass to Carters upon delivery pursuant to clause 4.6.  

7.3  Ownership in any Goods rejected by Carters in accordance with clause 8 will pass to the Supplier upon rejection by Carters, and, if held by Carters, will be held at the Supplier’s risk. Ownership and risk in any Goods returned to the Supplier in accordance with clause 8.1 will pass to the Supplier upon receipt by the Supplier. 

7.4  The Supplier acknowledges that Carters does not grant to the Supplier a security interest in the Goods under the Personal Property Securities Act 1999 and the Supplier further agrees that any previous right granted to it by Carters to register a security interest against goods supplied to Carters is revoked and any such existing registered security interest will be released.

8.    Returns and Rejection of Goods

8.1  The Supplier will accept any Goods returned from Carters provided the Goods are in resalable condition. 

8.2  Without limiting any other rights or remedies Carters may have under this Agreement or otherwise, if any Warranty is incorrect or the Supplier delivers the incorrect quantity of Goods, Carters may elect to accept and/or reject the Goods in the applicable Order in whole or in part.  

8.3  If any Goods are rejected or returned by Carters in accordance with this clause 8, Carters will return the applicable Goods to the Supplier with explanation of the reason for the return or rejection.  The Supplier will (at the option of Carters acting reasonably) either:

(a)   promptly refund Carters the Price paid for the Goods; 

(b)   promptly credit Carters the Price paid for the Goods; or

(c)   subject to availability of the Goods, replace the Goods.

8.4  The cost of return transportation, handling and disposal (if applicable) of rejected Goods, will be for the Supplier’s account.

8.5  The cost of return transportation, handling and re-stocking for Goods which are returned in accordance with clause 8.1, will be for the Supplier’s account. 

8.6  The Supplier will remove any trade marks, trade names and any other marks owned by, or identifying, Carters or any of its Related Companies from any rejected or returned Goods. 

8.7  Any Goods returned to Carters by a customer of Carters which are defective (in Carters reasonable opinion) within 90 days of the customer purchasing the Goods, may be refunded or replaced by Carters (at Carters’ election). Carters shall return the defective Goods to the Supplier and clause 8.3 shall apply. In addition, upon request from Carters, the Supplier shall promptly:

(a)   provide a Root Cause Analysis Report in respect of the applicable Goods;

(b)   provide such assistance and information as may be requested by Carters from time to time;

(c)   nominate one Supplier representative who is responsible for communicating with Carters in respect of the applicable defect and/or complaint;

(d)   take such other steps as may be requested by Carters to ensure that any defect and/or complaints in respect of defective Goods are responded to in a timely manner which is satisfactory to Carters.

9.    Goods Recalls

9.1  The Supplier will immediately provide Carters with a Root Cause Analysis Report if the Supplier becomes aware that any Goods which have been delivered to and/or ordered by Carters are defective, whether as a result of notice from Carters or otherwise.

9.2  A Root Cause Analysis Report shall detail:

(a)   affected Goods;

(b)   the applicable defect;

(c)   the cause of the defect;

(d)   risks to consumers associated with the defect;

(e)   potential harm that the defect may cause to consumers or the public;

(f)    proposed steps to remedy the defect, including whether any Goods already delivered to Carters stores need to be replaced;

(g)   whether, in the Supplier’s opinion, a recall should be initiated; 
and shall be updated with any other information applicable to the defective Goods as may be requested by Carters from time to time. 

9.3  The parties shall immediately review the Root Cause Analysis Report and, if a recall of Goods is required in the opinion of either Carters or the Supplier, the parties will meet as soon as reasonably practicable (and as often as required) with a view to determining:

(a)   whether the recall is required in relation to Goods that have already been delivered to Carters; and

(b)   if so, the steps to be taken to effect any such recall.

9.4   If a recall of Goods is required in the reasonable opinion of Carters and/or the Supplier, the Supplier shall also, upon request from Carters provide such assistance and information as may be requested by Carters from time to time to ensure that Carters’ concerns in respect of the need for a recall are addressed to Carters satisfaction (and the person nominated in accordance with clause 8.7(c) shall be responsible for communicating with Carters in respect of the potential recall). 

9.5  The Supplier will meet all costs associated with the recall, including, marketing and other costs related to effecting the recall, the cost of destruction (if applicable) and replacement of the Goods recalled, transportation costs, remediation costs and all costs incurred in connection with any claims by third parties or customers of Carters in respect of the recalled Goods.

9.6  The Supplier agrees to indemnify Carters for any liability, damage, loss, cost or expense suffered or incurred by Carters as a direct or indirect result of a Goods recall. 

10.  Service Standards

10.1 The Supplier will:  

(a)    provide all quotations to Carters;

(b)    provide confirmation to Carters on an Order where confirmation has been requested by Carters; 

(c)    provide technical support to Carters; and

(d)    fulfil all deliveries;
        within the Service Level Requirements, measured using Carters’ data. 

10.2  The Supplier will provide monthly reports on the items set out in clause 10.1 above (and any other information as may be requested by Carters from time to time) and, in each case, the Supplier’s performance by reference to the Service Level Requirements.

11.    Marketing Activity 

11.1   In addition to any other rebates or other incentives due to Carters under this Agreement, Goods purchased for new or refurbished stores will attract an additional “one off” special discount of 15% off the Price on the opening stock purchases. The discount shall be calculated by Carters and automatically deducted from the Supplier’s relevant monthly invoices.

11.2   Carters supports the use of show homes to stimulate the sale of new homes.  As part of this support, Carters provides materials for use in the construction of these show homes. Carters encourages the Supplier to provide funding or products support for this programme, which will be used by Carters to support these initiatives. 

11.3   Carters encourages the Supplier to support and participate in additional activities that Carters undertakes. These include (but are not limited to) Carters product catalogues, trade mailer advertising features, Advantage Programme, communications and offers Catalogues and product specific rebates.  

12.    Compliance

12.1   In relation to the supply of Goods and performance of its obligations under this Agreement, the Supplier will (and will ensure that its Representatives will), at all times comply with:

(a)     the Building (Building Product Information Requirements) Regulations 2022;

(b)     the relevant Site Rules for each Carters site they visit;

(c)     all Applicable Law; and

(d)     any safety instructions and reasonable directions or requests made by Carters and its Representatives of Carters from time to time.

12.2   The Supplier shall immediately notify Carters if any Good becomes subject to a warning or ban under section 26 of the Building Act 2004.

12.3   The Supplier shall:

(a)      ensure that the Goods supplied are without risks to the health and safety of those persons who will install, use, maintain, or
repair the Goods, or who may at any time be in the vicinity of and exposed to the Goods;

(b)      carry out any necessary analysis, testing, calculations, or examination to verify the safety and suitability of the Goods being supplied;

(c)      provide Carters with all relevant information regarding the purpose for which the Goods were manufactured, the results of any testing or examination, and any conditions necessary to ensure that the Goods are without risks to health and safety.

12.4   The Supplier will be responsible for the health and safety of its own Representatives in the performance of Services and/or delivery of Goods.  If requested by Carters, the Supplier will have a health and safety plan in a form reasonably satisfactory to Carters to be followed by the Supplier’s Representatives in connection with the performance of Services and delivery of Goods pursuant to this Agreement.

12.5   To the extent that Supplier and Carters have overlapping health and safety duties in relation to the supply of the Goods under this Agreement, the Supplier agrees to consult, co-operate, and co-ordinate activities with Carters and to provide all information Carters may require.

13.    Supplier Warranties and Obligations

13.1   With respect to each of the Goods supplied to Carters under this Agreement, the Supplier warrants to Carters that:

(a)      ownership in the Goods, free from all liens, charges, encumbrances or any other security interests, will vest in Carters on the earlier of payment or delivery of the Goods in accordance with clause 7.1;

(b)      the Goods comply in all respects with any published specifications, best industry standards and the New Zealand Building Code;

(c)      the Goods (or any packaging relating to the Goods) do not contain asbestos or any traces of asbestos;

(d)      the Goods are merchantable, of good quality and fit for the purposes made known by Carters to the Supplier (expressly or by implication) and that the Supplier represents to Carters; 

(e)      any information relating to the Goods provided to Carters is true and correct and is not unsubstantiated, false or misleading in a material particular or because of a material omission; and

(f)       any intellectual property rights or other proprietary rights of any third party will not be infringed by the supply to, use or sale of Goods by Carters.

13.2    The Supplier represents and warrants to Carters that:

(a)       the execution of this Agreement and the performance of its obligations under this Agreement will not breach or conflict with any Applicable Law or agreement to which the Supplier is a party;

(b)       the Supplier holds all consents, approvals, permits and licences necessary for the manufacture (if applicable), storage and/or supply of the Goods;

(c)       the Supplier’s financial condition is stable and sufficient to enable it to perform its obligations under this Agreement;

(d)       the Supplier will ensure that all its Representatives involved in the supply of Goods have the knowledge, qualifications, skills and experience appropriate for the manufacture (if applicable) and supply of the Goods and have been trained and instructed appropriately to manufacture (if applicable) and supply the Goods.

13.3    The Supplier will:

(a)       obtain all usual and customary trade warranties from manufacturers and suppliers of raw materials used in the manufacture of Goods (if applicable) or in relation to goods acquired for supply under this Agreement;

(b)       ensure that Carters and Carters’ customers will have the benefits of those warranties and that, to the extent permitted by law, Carters’ customers can enforce the warranties directly; and

(c)      provide to Carters details of such warranties, including duration and conditions.

13.4   The Supplier acknowledges that (a) the Consumer Guarantees Act 1993 (CGA) and any other applicable legislation applies to Carters’ customers as consumers of Goods and (b) to the extent permitted by law, Carters’ customers may enforce those legal obligations against the Supplier directly.  In the event that any Carters’ customer makes a complaint to the Supplier (or is referred to the Supplier by Carters), the Supplier will respond to such customer promptly and use its best endeavours to respond to the customer and address the applicable compliant in a manner that preserves Carters’ reputation and the goodwill of the applicable customer. The Supplier will keep Carters informed on the process of any complaints made to the Supplier by Carters customers.

13.5   Carters may inspect any processing or storage site used by the Supplier to supply Goods and the Supplier’s quality assurance and quality control records, upon no less than 2 Business Days notice to the Supplier, to confirm that:

(a)      the Supplier’s operating procedures are satisfactory to Carters (having regard to any specifications and to such operating procedures as would be prudent for companies engaged in business similar to the Supplier); and 

(b)      the Goods are being manufactured (if applicable) and supplied in accordance with this Agreement.  

13.6    Any inspection by Carters in accordance with clause 13.5 will not:

(a)       relieve the Supplier of its obligations under this Agreement; or

(b)    constitute acceptance by Carters of any Goods.
13.7    Carters may during the term of this Agreement and for a period of one (1) year after termination of this Agreement, on not less than 10 Business Days’ written notice, require that a reputable and independent auditor nominated by Carters, and at Carters expense, audit the Supplier’s compliance with this Agreement by attending during normal working hours at the office where the Supplier’s records are maintained.  The Supplier must fully co-operate with the auditor and provide them with access to and copies of all information required for the purposes of any such audit.    

14.    Indemnity and Liability

14.1  The Supplier agrees to indemnify Carters for any liability, damage, loss, cost or expense (including damage to property, plant or equipment) suffered or incurred by Carters as a direct or indirect result of any act or omission by the Supplier or the Supplier’s Representatives in breach of any warranty, undertaking or obligation under this Agreement, any Order or any Applicable Laws or any other act or omission, negligence or recklessness of the Supplier or its Representatives. 

14.2  Carters liability under or in connection with this Agreement shall be limited to the Prices payable for Goods. 

15.    Intellectual Property Rights

15.1  Any Intellectual Property in any specifications provided by Carters to the Supplier in connection with this Agreement remains with Carters.  The Supplier will not copy or use the Carters specifications except as necessary in connection with the performance of its obligations or exercise of its rights under this Agreement.

15.2  If the Goods feature any Carters Intellectual Property, the Supplier must only sell those Goods to Carters, unless that Intellectual Property has first been removed before the Goods are sold to any other person.

15.3  The Supplier agrees to indemnify Carters against all liability, loss, damages, and costs arising out of any claim, settlement, or proceedings brought by any third party against Carters where use or development of any Intellectual Property in the Goods constitutes an infringement of copyright or any other Intellectual Property rights of a third party. 

16.    Termination and Force Majeure

16.1   Either party may terminate this Agreement by written notice to the other party if: 

(a)    the other party is in breach of any material obligation under this Agreement or any Order; and
        (i)    in the reasonable opinion of the non-defaulting party the breach is not capable of being remedied; or

        (ii)    if the breach is capable of being remedied, the defaulting party fails to remedy that breach to the non-defaulting party’s satisfaction within 48 hours after notice has been given requiring such breach to be remedied. 

16.2   The Supplier acknowledges that, for the purposes of (and without limiting) clause 16.1, the Supplier’s obligations to comply with the health and safety requirements, policies and Site Rules of Carters in accordance with clause 12, the DIFOTIS standards as set out in the Trading Terms and the Service Standards in accordance with clause 10, shall constitute material obligations of the Supplier under this Agreement. 

16.3   Either party may terminate this Agreement with immediate effect if an Insolvency Event occurs in respect of the other party. 

16.4   If either party is unable, wholly or in part, by reason of a Force Majeure Event, to carry out any obligation under this Agreement and/or any Order:

(a)    provided that party gives the other party immediate written notice of the nature and expected duration of and the obligations affected by the event, that obligation is suspended to the extent that it is affected by the Force Majeure Event; and

(b)    if the Force Majeure Event continues for more than 20 consecutive days, or an aggregate of 20 Business Days in any 12 month period, the party not relying on the Force Majeure Event may terminate this Agreement by notice in writing to the other party.  

16.5   Termination or expiry of this Agreement shall:

(a)    have the effect of automatically terminating every Order in existence at the time of termination, unless otherwise specified by Carters (at Carters’ election) in the notice of termination;

(b)    not affect any provisions of this Agreement which are intended to continue after termination; and 

(c)    be without prejudice to any claim by either party against the other party arising out of any breach or non-performance by that party of its obligations under this Agreement at any time prior to expiry or termination.  

17.   Confidentiality 

Except as required by law or the applicable listing rules of any Stock Exchange, the Supplier will ensure that neither it nor any of its Representatives will, during or after the term, use, exploit or disclose to any person any information belonging to Carters which is confidential or sensitive to Carters without the prior written consent of Carters.  Upon the termination of this Agreement, the Supplier shall immediately return and, as applicable, procure the return of, all such confidential information to Carters.

18.   Insurances

The Supplier will carry public liability, product liability and third party motor vehicle insurance to the sum of $10 million.  Such insurance will be on an occurrence basis; that is, it will cover any claim made for injuries or damages arising out of an event occurring during the term of the policy regardless of whether the claim is made after the expiration of the term of the policy.  The Supplier will (on request by Carters) provide evidence of the insurances required from the Supplier’s insurance company.

19.   Assignment

19.1  The Supplier may not assign any of its rights or obligations under this Agreement, except with the prior written consent of Carters.  

19.2  Any change in the effective management or control of the Supplier or any direct or indirect parent company of the Supplier, through whatever means, will be deemed to be an assignment of this Agreement requiring the prior written consent of Carters.

19.3  The assignment by the Supplier of any of its benefits or obligations under this Agreement in whole or in part will not relieve the Supplier in any way whatsoever from its responsibility for due performance of this Agreement in accordance with its terms and conditions.

19.4  Carters may assign or novate this Agreement and/or any of its rights or obligations under this Agreement to anyone without the Supplier’s consent, provided that the assignee or novatee enters into a deed of novation with Carters in favour of the Supplier agreeing to be bound by and to comply with the obligations of Carters under this Agreement, which deed of novation the Supplier agrees to execute.  In relation to circumstances where Carters novates any part of its rights or obligations under this Agreement in accordance with this clause 19.4, this Agreement and the novation of this Agreement may be amended in such a manner as Carters may reasonably require so that this Agreement and the novated component of this Agreement when taken together continue to reflect the terms and conditions contained in this Agreement.

20.   Sub-contractor

20.1  The Supplier will not engage or employ any sub-contractor or agent in relation to performing its obligations under this Agreement without obtaining prior written consent from Carters.

20.2  Any consent granted pursuant to clause 20.1 will be subject to the sub-contractor or agent entering into a written contract with the Supplier, in a form acceptable to Carters, providing that the sub-contractor or agent will comply with all the obligations of the Supplier specified in this Agreement and that such contract expressly confers benefits on Carters which are enforceable by Carters.

20.3  The sub-contracting by the Supplier of any of its benefits or obligations under this Agreement in whole or in part will not relieve the Supplier in any way whatsoever from its responsibility for due performance of this Agreement in accordance with its terms.

21.    Reviews

A nominated Representative of each party shall meet on a regular basis as required by Carters to review the Supplier’s performance under this Agreement. 

22.    Dispute Resolution

22.1  Any party may require any dispute between the parties arising out of or in connection with this Agreement (Dispute) which has not been resolved within 30 days to be referred to mediation. The mediator will be appointed by both parties or where the parties cannot agree on a mediator within 30 days of a party referring a Dispute to mediation, appointed by the Chairperson of LEADR New Zealand Incorporated or the Chairperson’s nominee. The terms of mediation will be agreed between the parties or, if the parties cannot agree on those guidelines within 30 days of appointment, in accordance with the guidelines set down by the mediator. The costs and expenses of mediation will be shared by the parties equally. 

22.2  The provisions of clause 22.1 will not limit or affect the right of, Carters or the Supplier to apply to a court at any time for any interim or preliminary relief in respect of the Dispute.

23.    Notices

Every notice or other communication given under or in connection with this Agreement will be in writing and addressed to the relevant party in accordance with the Trading Terms, or as specified in a relevant Order and personally delivered or sent by pre-paid registered mail or email.  No notice or communication is effective until received. Every notice or other communication will be deemed to have been received three Business Days after it has been put into the post (if sent by pre-paid registered mail) or when it passes the point in the sender’s computer system that the communication could not be stopped by the sender from being transmitted (if sent by email) and, in either case, if deemed receipt occurs after 5.00 pm on a Business Day, deemed receipt will be deferred until 8.30 am on the next Business Day. 

24.    Other

24.1  No waiver of any breach of, or failure to enforce any provision of, this Agreement by any party shall in any way limit the right of such party thereafter to enforce and compel strict compliance with the provisions of this Agreement.

24.2  Carters reserves the right to review and amend any of these Terms of Supply at any time.  Any change will take effect on Orders placed after the date on which Carters publishes the revised Terms of Supply on the Carters website (www.carters.co.nz), except where the amended Term is found by any court or administrative body of competent jurisdiction, or otherwise considered by Carters, to be invalid, unenforceable or illegal (whether as between the parties to these Terms or in relation to any third party) in which case the last previously valid, enforceable and legal Term shall continue to apply.  Any changes to the Trading Terms, must be agreed in writing by both parties.

24.3  If any term of this Agreement is, or becomes, unenforceable, for any reason, the relevant term is to be considered to be modified to the extent necessary to remedy the unenforceability.  If this is not possible, the provision is to be severed from this Agreement, without affecting the enforceability of any other term of this Agreement.

24.4  Each party shall make all applications, execute all documents and do all other acts and things which are necessary or reasonably required to implement and to carry out its obligations under this Agreement.

24.5  This Agreement will be governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.

24.6  This Agreement may be executed in counterpart copies each of which will be deemed an original, and all of which together will constitute one and the same instrument.

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