1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms the following definitions apply:
Contract means the contract between PTL and the Supplier for the sale and purchase of the Goods in accordance with these Terms.
Delivery Date means the date specified in the Order.
Delivery Location means the address for delivery of Goods as set out in the Order.
Goods means the goods (or any part of them) to be purchased by PTL from the Supplier as set out in the Order.
GST means goods and services tax imposed under the GST Act.
GST Act means the Goods and Services Tax Act 1985.
GST Invoice means a tax invoice complying with the requirements of section 24 or 24BA of the GST Act.
Insolvency Event in relation to the Supplier means anything that reasonably indicates that there is a significant risk that that the Supplier is or will become unable to pay its debts as they fall due. This includes any of the following:
Order means PTL's order for the Goods, as set out in PTL's purchase order form, PTL's written acceptance of the Supplier's quotation, or otherwise attached to these Terms, as the case may be.
PTL means Production Techniques Limited Company Number 458433 c-/ Ross Pauling & Partners Limited, E5, 27-29 William Pickering Drive, Albany, Auckland, 0632, New Zealand.
Specification means any specification for the Goods set out in the Order or as otherwise agreed in writing between PTL and the Supplier.
Supplier means the person or entity from whom PTL purchases the Goods.
Terms means the terms and conditions set out in this document.
1.2 in the interpretation of these Terms, the following provisions apply unless the context otherwise requires:
1.2.1 Headings are inserted for convenience only and do not affect the interpretation of these Terms.
1.2.2 A reference in these Terms to a business day means a day other than a Saturday or Sunday on which banks are open for business generally in Auckland, New Zealand.
1.2.3 If the day on which any act, matter or thing is to be done under these Terms is not a business day, the act, matter or thing must be done on the next business day.
1.2.4 A reference in this agreement to 'dollars' or '$' means New Zealand dollars and all amounts payable under these Terms are payable in New Zealand dollars.
1.2.5 A reference in these Terms to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislator regulations issued under that legislation or legislative provision.
1.2.6 A reference in these Terms to any document or agreement is to that document or agreement as amended, novated, supplemented or replaced
1.2.7 A reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to these Terms.
1.2.8 A reference to the word 'include' or 'including' is to be interpreted without limitation.
1.2.9 Any schedules and attachments form part of these Terms.
2. BASIS OF CONTRACT
2.1 These Terms apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice course of dealing.
2.2 The Order constitutes an offer by PTL to purchase the Goods in accordance with these Terms.
2.3 The Order shall be deemed to be accepted on the earlier of:
2.3.1 the Supplier issuing a written acceptance of the Order; and
2.3.2 the Supplier doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence.
3. THE GOODS
3.1 The Supplier must ensure that the Goods:
3.1.1 Comply with the Specifications set out in the relevant Order;
3.1.2 Are of acceptable quality and fit for any purpose held out by the Supplier or made known to the Supplier by PTL expressly or by implication;
3.1.3 where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery; and
3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier will, at all times, hold and maintain all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
3.3 PTL will be entitled to, at any time before delivery, inspect, test and monitor the Goods. The Supplier must facilitate and co-operate with any inspection of the Goods by PTL.
If following such inspection or testing PTL considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 3.1, PTL shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
4.1. The Supplier shall deliver the Goods:
4.1.1.on the Delivery Date;
4.1.2 at the Delivery Location; and
4.1.3 during PTL's normal business hours, or as instructed by PTL.
4.2 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.3 The Supplier must ensure that:
4.3.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition; and
4.3.2. each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the order number (if any), the type and quantity
of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.4 The Supplier shall not deliver the Goods in instalments without PTL's prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle PTL to the remedies set out in clause 5.1.
5.1 If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 3.1, then, without limiting any of its other rights, powers or
remedies under these Terms or at law, and whether or not it has accepted the Goods, PTL may:
5.1.1 terminate the Contract;
5.1.2 reject the Goods (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense;
5.1.3 require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;
5.1.4 refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
5.1.5 recover from the Supplier any costs incurred by PTL in obtaining substitute goods from a third party; or
5.1.6 claim damages for any other costs, loss or expenses incurred by PTL which are in any way attributable to the Supplier's failure to carry out its obligations under the contract.
5.2 These Terms shall apply to any repaired or replacement Goods supplied by the Supplier.
6. TITLE AND RISK
6.1 Title and risk in the Goods shall pass to PTL on completion of delivery in accordance with clause 4.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date the Contract came into existence.
7.2 The price of the Goods includes the costs of packaging, insurance and carriage of the Goods.
7.3 No extra charges shall be payable by PTL unless agreed in writing between the parties.
7.4The Supplier will invoice PTL for price of the Goods on or at any time after the completion of delivery. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, Order number, the Supplier's GST registration number (if applicable), and any supporting documents that PTL may reasonably require and complies with clause 7.5 (if applicable).
7.5 PTL shall pay correctly rendered invoices at the end of the month following the date on the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
7.6 PTL may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to PTL against any liability of PTL to the Supplier.
7.7 To the extent that any supply from the Supplier to PTL pursuant to these Terms constitutes a taxable supply for GST purposes (the Taxable Supply), the GST chargeable thereon, as between the Supplier and PTL, will be payable by PTL to the Supplier. PTL will pay the GST amount at the same time and in the same manner as payment for the Taxable Supply is required, provided that on or before that time the Supplier has issued to the Recipient a GST Invoice.
8. PTL MATERIALS
8.1 The Supplier acknowledges that any materials, equipment and tools, drawings, Specifications, and data supplied by PTL to the Supplier (PTL Materials) and all rights in the PTL Materials are and shall remain the exclusive property of PTL. The Supplier shall keep the PTL Materials in safe custody at its own risk, maintain them in good condition until returned to PTL, and not dispose or use the same other than in accordance with PTL's written instructions or authorisation.
9.1 The Supplier indemnifies PTL and its officers, directors, agents and employees against any actions, proceedings, losses, damages, liabilities, claims, costs and expenses, including fines, penalties, legal and other professional costs on a full indemnity basis and any GST payable in relation to any of the foregoing except to the extent that PTL obtains an input tax credit for such GST, that PTL or any of its officers, directors, agents or employees incurs or suffers, as a direct or indirect result of a breach of these Terms by PTL.
9.2 Without limiting what is covered by this indemnity, the indemnity extends to PTL's liability to third parties arising out of the Goods including (but not limited to):
9.2.1 liability for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
9.2.2 liability to governmental or regulatory authorities and consumers for unsafe or defective Goods.
9.3 For the purpose of section 4 of the Contracts (Privity) Act 1982, the obligations contained in this clause 9 are intended to create a benefit in favour of, and be enforceable by, PTL's officers, directors, agents and employees.
9.4 This clause 9 shall survive termination of the Contract.
10.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain.
10.2 The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
10.3 This clause shall 10 survive termination of the Contract.
11.1 PTL may terminate the Contract by notice, such termination to take immediate effect on the date on which notice is given, if any of the following occurs:
11.1.1 The Supplier commits a material breach of the Contract that is not rectifiable.
11.1.2 The Supplier fails to rectify a breach of the Contract that is rectifiable within 10 days after receiving a notice specifying the breach and requiring rectification.
11.1.3 An Insolvency Event happens to the Supplier.
11.2 PTL may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall
discontinue all work on the Contract. Where the Contract is terminated under this clause 11.2, PTL shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
11.3 No party is entitled to terminate the Contract except as expressly permitted in these Terms.
Effect of termination
11.4 In addition to any other rights, powers or remedies a party may have under the Contract or at law, if this Contract ends, or is terminated under clause 11.1 or 11.2, the
following will apply:
11.4.1 Each party is released from its obligations under the Contract (except those relating to confidentiality and any other clauses expressly stated to survive, or that implicitly survives, the termination of this the Contract).
11.4.2 Each party retains the rights it has accrued under the Contract.
11.4.3 Each party must return any confidential information in its possession to the relevant party or, if requested by the relevant party, destroy the confidential
12. FORCE MAJEURE
12.1 Neither party is liable for a failure to perform, or a delay in performing, an obligation set out in these Terms if the failure or delay arose from a cause beyond the reasonable control of that party. A cause beyond the reasonable control of a party includes an act of God, strike, lockout, other industrial disturbance or labour difficulty, war, act of public enemy, blockade, revolution, riot, insurrection, civil commotion, lightning, storm, flood, fire, earthquake, explosion, embargo, unavailability of any essential equipment or materials, unavoidable accident, lack of transportation, or anything done or not done by or to a person, except the party relying on force majeure.
Assignments and transfers
13.1 A party must not assign or transfer any of its rights or obligations under the Contract without the prior written consent of the other party.
Contracts (Privity) Act 1982
13.2 Unless these Terms expressly provides otherwise, these Terms is not intended to confer a benefit on any person or class of persons who is not a party to it.
13.3 These Terms and the Order contain everything the parties have agreed in relation to the subject matter it deals with. No party can rely on an earlier written document or
anything said or done by or on behalf of another party before the Contract came into existence.
13.4 Each party must at its own expense promptly execute all documents and do or use reasonable endeavours to cause a third party to do all things that another party from time to time may reasonably request in order to give effect to, perfect or complete the Contract and all transactions incidental to it.
Governing law and jurisdiction
13.5 The Contract is governed by the law of New Zealand. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.
13.6 Each provision of these Terms is individually severable. If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction it is to be treated as being severed from the Contract in the relevant jurisdiction, but the rest of these Terms will not be affected. The legality, validity and enforceability of the provision in any other jurisdiction will not be affected.
13.7 No variation of these Terms or the Order will be of any force or effect unless it is in writing and signed by each party to the Contract.
13.8 A waiver of any right, power or remedy under the Contact must be in writing signed by the party granting it. A waiver only affects the particular obligation or breach
for which it is given. It is not an implied waiver of any other obligation or breach or an implied waiver of that obligation or breach on any other occasion.
13.9 The fact that a party fails to do, or delays in doing, something the party is entitled to do under the Contract does not amount to a waiver.