In this Agreement:
Goods means the goods (if any) described in the Schedule or Order;
GST means goods and services tax;
HSWA means the Health and Safety at Work Act 2015 and all regulations under and amendments to that Act and any legislation passed in substitution for that Act or incorporating any of its provisions, as amended and/or replaced from time to time;
Loss means any loss, liability, costs (including full legal costs on a solicitor-client basis) or expense incurred by the Purchaser relating to this Agreement;
Order means the Purchaser’s order, if any, accompanying this Agreement or otherwise placed or communicated with the Supplier and includes the terms and conditions set out in this Agreement;
Representative of a party means that party’s director, or authorised officer, employee or agent;
Services means the services (if any) described in the Schedule or Order;
Specifications means any technical or other specification or drawing relating to the Goods or Services referred to in the Schedule, Order, attached to this Agreement or as otherwise provided by the Purchaser.
2. Supply of goods of services
2.1 The Supplier shall provide the Goods and/or Services at the price(s) set out in the Schedule and in accordance with the other terms set out in this Agreement (including to any Specification provided). Any additional costs that are not specified in the Schedule or Order will be deemed included in the price.
2.2 Prices include GST unless stated otherwise.
3.1 Payment for Goods or Services supplied by the Supplier to the Purchaser will be made on the last working day of the month following the date of a correctly rendered GST invoice. Any other payment terms must be approved by the Purchaser’s Chief Financial Officer.
3.2 In addition to any other information specified in the Order, invoices must contain the following information: Purchase Order Number, Item Number, Description of Goods or Services, Sizes, Quantities, Weight, Unit Prices, GST Payable and Extended Totals, all as applicable.
3.3 The Purchaser shall retain the amount of any retention monies specified in the Schedule or Order in respect of this Agreement or an Order placed under this Agreement. The monies retained shall be paid to the Supplier within 10 Working Days of satisfaction of the retention condition(s) specified in the Schedule or Order. The Purchaser may deduct from the retention monies the amounts required to make good any omissions or defects in the Goods and/or Services supplied.
4. Delivery of goods/services supplied
The Goods and/or Services must be received on the dates and at the destination specified in the Schedule/Order. Time is of the essence. If the Supplier fails to meet any such delivery date, the Purchaser may, without limiting its other rights and remedies, cancel all or part of the Order. If the Purchaser has paid a deposit, it is entitled to a full refund.
5. Title and quality
5.1 Property in the Goods passes to the Purchaser on delivery.
5.2 The Supplier bears all risk of loss and damage to the Goods until final acceptance by the Purchaser in accordance with clause 5.3.
5.3 Notwithstanding any prior inspections, usage or payments, all Goods and Services shall be subject to:
(a) final inspection which may include measurement, testing or examination; and
(b) acceptance at the Purchaser’s site within a reasonable time (but not more than 90 days) after receipt of the Goods.
5.4 Acceptance of the Goods or Services by the Purchaser will occur:
(a) on the date upon which the Purchaser notifies the Supplier in writing of acceptance; or
(b) automatically upon the lapsing of the 90 day period stipulated in clause 5.3(b) if the Purchaser has not provided notice pursuant to clause 5.4(a).
5.5 The Purchaser’s acceptance does not waive any rights that it may have relating to the supply.
5.6 The Supplier warrants that the Goods or Services:
(a) are safe;
(b) are free from encumbrances, defect or fault;
(c) are of merchantable quality;
(d) are free from design errors or defects;
(e) include appropriate and correct warnings and instructions;
(f) are fit for the purpose for which purchased (as communicated by the Purchaser before the Order is placed or this Agreement is entered into (whichever is applicable) or as should be reasonably understood by the Supplier of the Goods who is experienced in such technical and specific matters relating to the Goods or Services and the purposes they are intended for);
(g) comply with any representations, descriptions, samples or other specifications (including the Specifications) including quality, function, performance or design;
(h) do not infringe the intellectual property rights of any other person; and
(i) include any applicable Supplier’s warranty that passes to the consumer from the Purchaser without liability to the Purchaser.
5.7 The Supplier agrees to indemnify the Purchaser against any Loss incurred by the Purchaser concerning a breach of warranty, representation or term of this Agreement.
5.8 The Purchaser may, within 90 days of delivery at the Purchaser’s facility, reject any Goods or Services which do not comply with this Agreement or the Order. Once the Goods or Services are rejected, the Purchaser may require:
(a) in the case of either Goods or Services, the Supplier to refund any payment within 7 days; or
(b) in the case of Goods, the Supplier to promptly collect the Goods and replace them with Goods to the Purchaser’s satisfaction: or
(c) in the case of Services, the re-supply of the Services.
5.9 Title and risk in the rejected Goods immediately re-vests in the Supplier. The Supplier is liable for all Loss incurred by the Purchaser due to the rejection of the Goods. The Supplier must, at its cost, remove from the rejected Goods any of the Purchaser’s property or branding.
6. Defects liability for goods and/or services provided
The Supplier shall at its own cost, rectify any defects in materials or workmanship supplied which have been notified to the Supplier within the defects liability period set out in the Schedule. This does not exempt the Supplier from liability for any latent defects which become apparent after such defects liability period has expired.
7. Further obligations in relation to the provision of services
7.1 When Services are to be performed, the Supplier shall proceed diligently and expeditiously to carry out the Services in accordance with the timetable agreed and shall be responsible for any delays which are not caused by matters outside the reasonable control of the Supplier. If it becomes apparent to the Supplier that there will be any delay it shall seek written consent of the Purchaser to an extension of time. The Purchaser may decide to grant an extension of time if circumstances warrant it.
7.2 The Supplier shall provide all labour, materials, services, equipment and plant required for the provision of the Services unless stated otherwise in the Schedule or Order. The Supplier shall seek all necessary approvals to any works being carried out as part of the Services, such as building consent, at its own cost.
7.3 All materials used by the Supplier shall be new unless otherwise agreed by the Purchaser and must be of satisfactory quality, reasonably suitable for their purpose and in accordance with any Specification supplied.
7.4 Any variations must be agreed in writing by the parties prior to them being implemented.
7.5 The Supplier must comply with all applicable laws and regulations, including without limitation environmental laws and the HSWA. All Goods provided must comply with applicable standards relating to manufacturing, packaging, labelling and transportation. When working on or at the Purchaser’s premises the Supplier must comply with the Purchaser’s then safety and other applicable policies and procedures.
7.6 The Supplier shall be responsible for the care, safety, protection, security, maintenance, repair, reinstatement and clean-up after use, of any materials and equipment used and any Services it provides at the Purchaser’s premises and shall exercise care and take adequate precautions to ensure that no nuisance, loss, damage or injury to persons or property is caused. The Supplier shall be responsible for the security of any equipment or plant brought onto the Purchaser’s site. The Supplier shall ensure all plant and equipment used in the performance of the Services is in sound condition and complies with all relevant statutory requirements and recommended industry guidelines.
7.7 Where the Services are being performed at the Purchaser’s site, the Supplier shall ensure that during and at completion of the Services, the Purchaser’s site is left in a clean, safe and tidy condition and all surplus material, plant, equipment and rubbish is removed promptly form the site.
7.8 The Supplier shall be responsible for any damage or Loss suffered as a result of it or its sub contractor’s being on the Purchaser’s site.
8. Intellectual property rights
8.1 All drawings, Specifications, artwork, data, material, supplies, equipment, tooling, dies, moulds, fixtures and patterns furnished or paid for by the Purchaser, shall be the Purchaser’s exclusive property, and shall be used by the Supplier only in performance of the Order and/or this Agreement. Such property, while in the Supplier’s custody and control, shall be held at the Supplier’s sole risk and, upon the Purchaser’s request, shall be returned to the Purchaser in good condition, normal wear and tear accepted.
8.2 The Supplier may not use any intellectual property of the Purchaser for any purpose except for the performance of its obligation under this Agreement.
8.3 The Supplier agrees that all intellectual property rights created, discovered or coming into existence as a result of, or for the purposes of or in connection with, the provision of the Goods and/or Services, will by this clause be vested in and owned by the Purchaser immediately upon creation. In respect of all other pre-existing intellectual property rights used by the Supplier in connection with this Agreement, the Supplier grants the Purchaser an irrevocable, transferable, perpetual, non-exclusive, royalty free licence to use such pre-existing intellectual property rights.
9.1 The Supplier agrees to keep confidential all of the Purchaser’s information concerning or arising from the performance of the Order or this Agreement (“Information”). This clause does not apply to Information which is lawfully obtained from a third party, is public knowledge, is already known or is otherwise independently developed by the Supplier.
9.2 All Information supplied by the Purchaser remains the property of the Purchaser and may only be used by the Supplier in fulfilling its obligations under this Agreement. The Supplier must not disclose any Information without prior written consent of the Purchaser.
10. Indemnity and release
The Supplier shall indemnify and hold the Purchaser, its affiliated companies, and their Representatives, successors, and assigns harmless from and against any and all claims or Losses, whether ordinary, special or consequential arising directly or indirectly from or in connection with:
(a) the acts, negligence, omissions or wilful misconduct of the Supplier;
(b) the Goods or Services supplied;
(c) a breach of any of the Supplier’s warranties or any other term of this Agreement;
(d) a claim that any Goods or Services supplied to the Purchaser infringe upon or misappropriate any patent, copyright, trademark, trade secret or other intellectual property interest of another; or
(e) a claim of any lien, security interest of other encumbrance made by a third party.
11.1 The Purchaser may, at any time, terminate the Order and/or this Agreement, in whole or in part, without cause, upon written notice to the Supplier. Following upon any such termination the Supplier shall, to the extent specified by the Purchaser, stop all work on the Order and/or this Agreement, and cause its suppliers and subcontractors to stop work. Charges for any such termination of the Order and/or this Agreement will be limited to actual non-recoverable costs incurred by the Supplier which the Supplier can demonstrate were properly incurred prior to the date of termination. In no event shall such reimbursement include anticipated profits for undelivered Goods or unperformed Services.
11.2 The Purchaser may terminate the Order and/or this Agreement, in whole or in part, if the Supplier:
(a) fails to make delivery of the Goods or perform the Services within the time specified in the Order or this Agreement;
(b) fails to replace defective Goods or Services in accordance with this Agreement;
(c) fails to perform any other term specified in this Agreement; or
(d) becomes insolvent, goes into liquidation, receivership or statutory management, files or has filed against it a petition in bankruptcy, or makes an assignment for the benefit or creditors.
12. Health and safety obligations
12.1 The Supplier warrants that it understands its duties to ensure that it provides a safe working environment for all workers affected by the Goods or Services it is providing and its duty to consult, co-operate and co-ordinate its activities with the Purchaser and any other supplier involved with the Goods or Services or at any site it is operating on. Accordingly the Supplier agrees that:
(a) It understands its obligations to itself, its contractors, subcontractors, employees and workers under the HSWA, and confirms its intention to comply at all times while providing Goods or Services to or performing work on behalf of the Purchaser.
(b) It recognises that the Purchaser can be responsible for only advising the nature of, and methods of controlling, hazards specific to the Purchaser’s business or premises and that the Supplier shall apply best industry practice to ensure the safety of all involved at all times.
(c) Prior to any work being undertaken on the Purchaser’s premises, all contractors or employees of the Supplier must complete a health and safety site induction and a company induction.
(d) The Supplier shall ensure that all its subcontractors, employees and workers are informed of the inductions and that no person shall be permitted to provide services or perform any work without being so inducted.
(e) The Supplier must have a health and safety management system in place, which ensures its compliance with the HSWA in connection with the services or work being performed. If it does not, then the Supplier will work under the Purchaser’s health and safety management system while on the Purchaser’s premises.
(f) The Supplier agrees to make available for inspection on demand by the Purchaser any documentation related to health and safety in connection with the services or works being performed and any documentation confirming that the Supplier and all its subcontractors have the relevant insurances required.
(g) The Purchaser has the right to monitor the Supplier’s activities and carry out safety audits from time to time during the progress of any works or services.
(h) The Purchaser has the right to suspend work or the provision of Goods or Services at the Supplier’s expense where the Purchaser is not satisfied that all steps that are reasonably practicable are being taken to ensure the health and safety of workers in connection with the works and Goods and Services.
(i) The Supplier will advise the Purchaser immediately (or where not practicable, by the end of that working day) of any accidents, including those in which serious harm is caused or a significant hazard is involved, and meet the requirements of the HSWA in reporting serious harm accidents to WorkSafe NZ.
(j) The Supplier will co-ordinate and discuss with the Purchaser any new hazards created during the contract works or provision of services and will take all practicable steps to avoid harm and reduce the risks caused to any person as a result of such hazards.
(k) Before beginning any contract works or performing any services, the Supplier will carry out a systematic identification of hazards and associated risks likely to be encountered and will develop controls for all those identified as being significant hazards.
(l) In the event of the Supplier causing a disruption on electrical supply, telecommunications supply, gas supply, water supply or triggering a fire alarm on the Purchaser’s premises, the Supplier will reimburse the Purchaser for any cost or expense which the Purchaser incurs because of this event. In particular the Supplier will reimburse the Purchaser any fines or expenses from the New Zealand Fire Service related to any fire alarm caused by the Supplier as a result of its activities.
(m) The Supplier is responsible for notifying Worksafe NZ if notifiable work is to be carried out while working for the Purchaser.
12.2 Where the Supplier operates vehicles as part of any Services (other than only for the delivery of Goods to the Purchaser), then without limiting the generality of the Supplier’s obligations under clause 12.1, the Supplier must:
(a) Keep and maintain all records required to be kept under any applicable legislation or regulations from time to time,
(b) Obtain and maintain, and comply with the terms and conditions of, all licences, vehicle authorities, certificates of fitness, distance records, insurances, dangerous goods licenses and any other permits required from time to time to carry out legally any part of the Services,
(c) Ensure that all drivers hold a current drivers licence with the appropriate endorsements, permits and classifications to legally carry out the Services. If required by law or Purchaser policy, all drivers must also have a certification to handle hazardous waste and/or dangerous good,
(d) Ensure that all drivers and other relevant personnel possess sufficient knowledge and experience to operate the vehicles (as applicable) and to perform the Services in a safe and competent manner; and
(e) Ensure that all loads are properly covered and secured and that all other reasonable precautions are taken to avoid any spillage while loading, transporting or disposing of materials. The Supplier is responsible for any spillage in the course of providing the Services (including without limitation, the costs of removal or clean up).
(f) ensure that all vehicles used in the provision of any Services are serviced in accordance with manufacturers’ service schedules.
12.3 Where the Supplier operates vehicles as part of any Services (other than only for the delivery of Goods to the Purchaser), the Supplier shall notify the Purchaser as soon as practicable if any of the following occurs:
(a) Any fault is found in any vehicle which relates to the roadworthiness of brakes, suspension or steering;
(b) Any incident occurs which involves property damage, vehicle damage or personal injury whilst performing Services for the Purchaser;
(c) Any road traffic accident occurs whilst providing Services for the Purchaser.
12.4 The Supplier undertakes that before any permitted subcontractor of it undertakes any work at the Purchaser’s premises it shall obtain similar warranties and undertakings to those stated in clauses 12.1 to 12.3 from that subcontractor in relation to the subcontract works.
13. Resource Management Act 1991 (“RMA”)
13.1 The Supplier warrants to the Purchaser that it shall not do anything or omit to do anything, or use materials, substances or processes which:
(a) Would or could discharge a contaminant into the environment that is not in compliance with resource consents held by the Purchaser; or that would or could cause any adverse effect on the environment; or
(b) Is a breach of any duty or obligation of the Supplier under the Resource Management Act 1991 (“RMA”); or
(c) Does or is likely to give rise to the issue of an abatement notice; enforcement proceedings or an excessive noise direction under the RMA against the Purchaser, Supplier or any subcontractor of the Supplier.
13.2 The Supplier undertakes that before any permitted subcontractor of it commences work on the Purchaser’s premises, the Supplier shall obtain similar warranties and undertakings as those stated in clause 13.1 from that Subcontractor in relation to the subcontract works.
14.1 The Supplier must obtain the Purchaser’s consent in writing before it:
(a) assigns its rights or subcontracts any obligation under this Agreement; or
(b) advertises or publishes anything concerning this Agreement.
14.2 During the period of the Agreement, the Supplier must, at its own expense provide the level of insurance cover stipulated in the Schedule. The Supplier must on the Purchaser’s request, produce satisfactory evidence of the insurance.
14.3 The Supplier is an independent contractor of the Purchaser. Nothing in this Agreement constitutes any other type of relationship between the parties.
14.4 Failing to insist on strict performance on any term of this Agreement is not a waiver of any later breach or default.
14.5 Each provision of this Agreement is severable. Severance does not affect any other provision.
14.6 The laws of New Zealand govern this Agreement and each party submits to the non-exclusive jurisdiction of the New Zealand courts.