n3 Membership Agreement
Terms and Conditions for Participation in Group Purchasing Agreements
Version 2.0 (June 2017)
n3 arranges various aggregation based agreements ("Group Purchasing Agreements") through which its customer base ("Members") may order various goods or services from contracted suppliers ("Suppliers"). Use of a Group Purchasing Agreement creates a separate supply agreement between each Member and the Supplier. This Agreement records the terms upon which the Member is entitled to access the Group Purchasing Agreements.
1. Rights of participation
During the term of this Agreement, the Member has the right to participate in Group Purchasing Agreements listed on the n3 website from time to time, subject to some agreements having restrictions on parties who may access them, for example trade competitors, certain association members and any with special terms and conditions. The Member's right to participate in a Group Purchasing Agreement will automatically terminate if that Group Purchasing Agreement is terminated. Separate supply agreements result between the Member and the Supplier, for every purchase through a Group Purchasing Agreement, which n3 is not a party to, nor liable under. n3 is only a broker in relation to each of those Group Purchasing Agreements.
2. Term of Agreement
If the Member is a direct fee paying Member, this Agreement will commence on the agreed commencement date and will continue for successive periods of 12 months, provided that:
a) neither party has given a notice to terminate to the other, prior to the expiry of the then current term; and
b) the Member pays n3's membership fee applicable to each subsequent term.
If the Member receives Membership through an Association or Channel group, to which the Member belongs, the term of this Agreement commences when the Member commences using the Group Purchasing Agreements, products, services or website and terminates on the termination of the Member's Association or Channel group membership terminating. On such termination, Member will be offered the option of a direct fee paying Membership.
3. Member acknowledges how n3 is remunerated
The Member acknowledges that:
a. membership fees are in the nature of an administration charge, payable to cover administration costs and to remunerate n3; and
b. n3 is also remunerated by fees/commissions from Suppliers, including in relation to each purchase by a Member from a Supplier.
4. Access to website
The Member will be provided with an individual login and a password for using the n3 secure website. Access to the website will be on the terms of this Agreement and any additional terms provided on the website. The Member will:
a. not disclose its login or password to any person and will immediately notify n3 of any unauthorised disclosure or use;
b. be responsible and liable for all access to the n3 website by any person using the Member's login and password and all such access will be deemed to be access by the Member;
use the n3 website at its sole risk and, to the extent allowed by law, n3 will not be liable (in contract or in tort, including negligence) to the Member or any other person for any matter or thing arising out of the Member's use of the n3 website however caused.
5. Notification of different terms
If any Supplier offers terms different from those notified to the Member under the relevant Group Purchasing Agreement, the Member will immediately notify n3 in writing.
6. Notification of changes in this Agreement
n3 reserves the right to make changes to this Agreement. n3 will advise when changes are proposed. Member agrees it will be bound by the changes upon use of Group Purchasing Agreements following advice of the proposed changed terms.
7. All orders direct with Supplier
The Member acknowledges that placing an order under a Group Purchasing Agreement will give rise to a separate agreement between the Member and the Supplier on the Supplier's terms of trade agreed between the Member and the Supplier. When placing an order using a Group Purchasing Agreement, the Member must advise the Supplier of its desire to use the Group Purchasing Agreement.
8. n3 online purchasing
n3 provides access to contract summaries, catalogue, pricing and purchasing information via its secure website. Where the Supplier has provided an electronic catalogue the Member will be able to purchase online.
9. Goods for sole use of Member
Goods or services bought by the Member under the Group Purchasing Agreements are for the use of that Member only. If the Member is considering on-selling or gifting goods or services to any other person, it must first obtain the written consent of n3.
The Member must at all times keep confidential and secure all n3's information (including information about Group Purchasing Agreements which is, or would reasonably be expected to be, commercially sensitive or confidential. Disclosure or use to the extent required by law or necessary to use this Agreement is allowed, however the Member will use its reasonable endeavours to resist requests for disclosure of, or access to, the information (e.g. under Official Information Act 1982). The Member will promptly notify n3 of any such request. The Member will, to the extent allowed by law, indemnify n3 and its directors and employers against any claim, damage, loss or cost incurred by any of them due to breach of its obligations in this clause or at law. This provision is also for the benefit of, and may be enforced by, n3's directors and employees. This provision is intended to survive termination of this Agreement.
11. Reporting of Information
The Member acknowledges that Suppliers will provide n3 with information on the Member's purchases and discounts.
The Member also acknowledges that n3 will provide aggregated purchase information and discounts received, without revealing individual Member's information, to Association or Channel groups to which the Member belongs, if applicable. Member specific information will be limited to whether the Member actively trades with Suppliers or not.
The Member authorises n3 to provide its contact details to Suppliers to encourage use of the Group Purchasing Agreements.
13. Access to records
The Member will, when requested by n3, allow n3's representatives access to the Member's records, at reasonable times, for reasonable purposes (e.g. so that n3 can ensure that the provisions of this Agreement are being complied with) that are relevant to this Agreement or the agreements between n3 and its Suppliers.
14. Termination for failure
A party may terminate this Agreement, by written notice to the other party, if the other party:
a. breaches, or fails to promptly or properly perform, any of its obligations and does not remedy the situation, to the reasonable satisfaction of the party who gave the notice, within 10 working days of receiving written notice of the breach or failure; or
b. is or becomes insolvent or bankrupt, or enters into receivership or liquidation.
15. Termination by n3
n3 may terminate this Agreement:
a. immediately by written notice if there is any direct or indirect change in control or ownership (legal or beneficial) of the Member;
b. at any time (with or without reason) by giving the Member at least 3 month's written notice.
16. Member's indemnity
To the extent allowed by law, the Member will indemnify n3 for any direct and indirect damage, loss or cost (including legal costs) to n3 due to any breach by the Member of this Agreement or any Group Purchasing Agreement. The Member will protect n3 and its directors and representatives from any claim or proceedings against any of them to the extent caused or contributed to by the Member (including passing on information provided to the Member). This provision is also for the benefit of, and may be enforced by, each of n3's directors and representatives.
17. n3's liability limited
Provided that n3 acts in good faith, it will not, to the extent allowed by law, be liable (in contract or tort, including negligence) to the Member for any physical, direct or indirect damage, loss or cost (including legal costs) caused or contributed to by:
a. any breach by n3 of this Agreement or any other agreement between the parties relating to a Group Purchasing Agreement;
b. any non-compliance by n3 with any law, or any act, omission or negligence of n3, or anything reasonably beyond n3's control;
c. termination of this Agreement by n3 for any reason) any breach or termination of any Group Purchasing Agreements; or
d. any non-compliance by a Supplier with any law, or any act, omission or negligence of a Supplier.
18. Consumer guarantees law
The Member accepts that goods or services supplied by n3 pursuant to this Agreement are for the purposes of a business, and every guarantee and warranty of n3 which may be implied by custom or law is excluded to the extent allowed by law.
Without limiting methods of service, notices are to be in writing, addressed to the other party's contact address and delivered by hand, by post, sent by fax or e-mail.
In this Agreement, unless the context otherwise requires or specifically otherwise stated:
a. "month" means a calendar month and "working day" means any day other than a Saturday, Sunday or public holiday;
b. "including" and similar words do not imply any limitation;
c. if the Member comprises more than one person, each of those person's liability is joint and several;
d. headings are only for convenience and may be ignored;
e. singular includes plural and vice versa, and the neuter and gender includes all genders;
f. references to a party or a person includes any form of entity and their respective successors, assigns and representatives;
g. references to legislation and any other form of law is to New Zealand law, including as amended or re-enacted;
h. amounts are in New Zealand dollars and exclude GST;
i. A party is not liable for any breach of this Agreement if the breach is due to a cause reasonably beyond its control and it has used its best endeavours to perform its obligations;
j. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement; and
k. New Zealand law governs this Agreement. New Zealand courts have non-exclusive jurisdiction.