1 SCOPE OF TERMS
1.1 Application of terms: These terms apply to all Goods and Services the Supplier supplies to Ravensdown unless agreed otherwise in writing between Ravensdown and the Supplier.
1.2 Purchase of Goods and/or Services: Ravensdown is under no obligation to purchase any Goods and/or Services from the Supplier unless Ravensdown issues a Purchase Order to the Supplier for those Goods and/or Services in accordance with clause 2. These terms apply regardless of whether they are referenced in a particular Purchase Order.
1.3 Conflict or inconsistency: Where there is any conflict or inconsistency between these terms and any Purchase Order the terms of the Purchase Order will prevail.
1.4 These terms prevail: These terms override, and apply to the exclusion, of any standard terms and conditions printed on any form or on any other document relating to the supply of Goods and/or Services issued by the Supplier.
1.5 Variation of terms: Ravensdown may vary these terms from time to time. Any varied terms will be posted on Ravensdown’s website at www.ravensdown.co.nz and will apply to all Goods and Services supplied by the Supplier to Ravensdown under any Purchase Order submitted after that variation is made.
2 ORDERING GOODS AND SERVICES
2.1 Issuing Purchase Orders: Ravensdown may place orders with the Supplier for Goods and/or Services at any time by issuing a written Purchase Order to the Supplier that sets out the specific requirements for that supply of Goods and/or Services.
2.2 Acceptance of Purchase Orders: The Supplier will be deemed to have accepted a Purchase Order unless the Supplier notifies Ravensdown in writing within 2 Business Days following receipt of the Purchase Order that it is unable to fulfil the Purchase Order. Each accepted Purchase Order constitutes a separate contract between the Supplier and Ravensdown, on these terms, for the supply of the Goods and/or Services referred to in the Purchase Order.
2.3 Changing Purchase Orders: Ravensdown may change a Purchase Order at any time, by sending the Supplier a revised Purchase Order which outlines how the original Purchase Order is being changed. Ravensdown will reimburse the Supplier for any reasonable costs incurred by the Supplier in meeting the first Purchase Order up to the time the revised Purchase Order is sent to the Supplier.
2.4 Hazardous Goods: Where any Hazardous Goods will be supplied by the Supplier or used in the provision of Services by the Supplier, the Supplier will, prior to or at the time of supplying the Hazardous Goods, provide a Material Safety Data Sheet in relation to such Hazardous Goods to Ravensdown.
3.1 Cancelling Purchase Orders for Services: Ravensdown may cancel any Purchase Order for unperformed Services by written notice to the Supplier. Ravensdown will pay the Supplier for those Services performed by the Supplier prior to Ravensdown giving the Supplier that cancellation notice.
3.2 Cancelling Purchase Orders for Goods: Ravensdown may cancel any Purchase Order for undelivered Goods by written notice to the Supplier (a cancellation notice). If the Purchase Order relates to:
3.3 Cancellation for Supplier’s default: Notwithstanding clauses 3.1 and 3.2, if the Supplier is in default under these terms or any agreement between the Supplier and Ravensdown, Ravensdown may cancel any Purchase Order without payment of any kind (including compensation) to the Supplier.
4 PRICING AND PAYMENT
4.1 Fees: Ravensdown will pay the Supplier the Fees plus GST (if properly chargeable) for any Goods and/or Services supplied, in accordance with this clause 4. Unless otherwise agreed in writing by Ravensdown and the Supplier the Fees are deemed to include all expenses, disbursements, taxes, levies, tariffs, duties, packaging costs and freight or insurance charges, other than GST.
4.2 Payment: Ravensdown will pay the Fees plus GST (if applicable) for any Goods and/or Services supplied no later than the 20th day of the month following the month in which the Supplier's invoice is received by Ravensdown or the date of Delivery or Completion, whichever is later, unless otherwise agreed in writing by Ravensdown and the Supplier. The Supplier must ensure that each invoice which it issues to Ravensdown contains the correct Purchase Order number and is a valid GST invoice for tax purposes.
4.3 Set-off: Ravensdown may set off against any amount due and payable by Ravensdown to the Supplier, any amount due and payable by the Supplier to Ravensdown or another member of the Ravensdown group.
5 DELIVERY, RISK AND TITLE
5.1 Delivery and packaging: The Supplier will Deliver the Goods:
5.2 Risk: Risk in Goods will remain with the Supplier until Delivery of the Goods to Ravensdown is completed.
5.4 Entry of premises: Ravensdown may enter any premises owned or occupied by the Supplier or on which any Goods are situated at any time after a default by the Supplier occurs (or before any such event if Ravensdown believes its occurrence is likely) to uplift any Goods and any other property in which the Goods are incorporated. To the extent permitted by law, Ravensdown will not be liable for, and the Supplier indemnifies Ravensdown against, any Loss the Supplier or any third party incurs as a result of Ravensdown’s actions under this clause.
6 WARRANTIES AND PERFORMANCE
6.1 Warranties for Goods: The Supplier warrants to Ravensdown that all Goods supplied to Ravensdown, will:
6.2 Warranties for Services: The Supplier warrants to Ravensdown that all Services supplied to Ravensdown will:
6.3 Warranties for Goods and Services: The Supplier warrants to Ravensdown that all Goods and Services supplied to Ravensdown will comply with all applicable laws, orders, regulations and standards.
6.4 Assignment of third party warranties: From the time that title to any Goods passes to Ravensdown, the Supplier assigns to Ravensdown the benefit of all warranties given by third parties in respect of the Goods. Where the Supplier is unable to assign a warranty to Ravensdown, the Supplier will hold that warranty on trust for Ravensdown and will take any action in respect of the warranty at the Supplier’s cost that Ravensdown reasonably requests.
7 INSPECTION/TESTING OF GOODS
7.1 Samples: If requested by Ravensdown, the Supplier will supply Ravensdown a sample of the Goods described in the Purchase Order to use as a quality standard reference. Should technical changes to the Goods be agreed between the parties, the Supplier will provide Ravensdown with a modified or replacement reference sample before production of the changed Goods commences.
7.2 Quality control information: If requested by Ravensdown, the Supplier will provide Ravensdown with copies of all manufacture and quality control data for the Goods and any information showing the Goods comply with the requirements of the Purchase Order.
7.3 Inspection/testing prior to Delivery: Ravensdown may have the Goods inspected or tested during manufacture or at any other time prior to Delivery. Any inspection or testing or failure to do so by Ravensdown will not constitute acceptance of any non-conforming Goods and will not impair Ravensdown’s right to reject or revoke acceptance of such Goods, notwithstanding Ravensdown's knowledge of, inspection of or testing of the Goods or its failure to do so, or the ease of discovery of any non-conformity or default in the Goods.
7.4 Inspection/testing after Delivery: Without limiting clause 7.3, Ravensdown may have the Goods inspected and tested after Delivery and, if the Goods are to be installed in or on any land or premises or incorporated in any plant, the inspection and testing may be carried out after such installation or incorporation and under operating conditions.
8 REJECTION OF GOODS AND SERVICES
8.1 Rejection of Goods: In the event of any breach of clause 6 in respect of Goods, whether such breach has been ascertained before or after any inspection or testing referred to in clause 7, then, at Ravensdown's option (but without prejudice to any of Ravensdown’s other rights or remedies):
8.2 Rejection of Services: In the event of any breach of clause 6 in respect of Services, then at Ravensdown's option (but without prejudice to any of Ravensdown’s other rights or remedies):
9 HEALTH AND SAFETY / ENTRY TO RAVENSDOWN PREMISES
9.1 General: Where the Supplier is required to enter any Ravensdown premises in order to Deliver any Goods or Complete any Services or to otherwise perform its obligations under these terms the Supplier will, and will ensure its employees, agents, subcontractors and other persons under the Supplier’s care or control and their personnel will:
9.2 PCBU: The Supplier acknowledges and agrees that it is a PCBU for the purposes of the H&S Requirements and accordingly has responsibility for the health and safety of all persons in and about the places where it Delivers the Goods and/or carries out the Services. The Supplier must consult, co-ordinate and co-operate with other PCBUs to impose reasonable restrictions on all such persons in relation to health, safety and welfare.
9.3 Warranties: Without limitation or prejudice to anything else in this clause 9, the Supplier warrants that it will ensure so far as reasonably practicable that no act or omission relating to Delivery of the Goods and/or Completion of the Services:
9.4 Audit: Ravensdown may, at any time, conduct a compliance audit with respect to the Supplier’s compliance obligations with this clause 9. The Supplier will immediately comply with Ravensdown’s requests and requirements in connection with any such audit.
9.5 Consultation: Ravensdown and the Supplier will consult, co-ordinate and co-operate with each other, as reasonably required, in relation to health and safety in respect of Delivery or pick up of Goods and/or provision of Services.
9.6 Suspension: If at any time Ravensdown considers the Supplier has failed to comply with any provision in this clause 9 Ravensdown may instruct the Supplier to cease Deliveries to any Ravensdown premises and/or cease performing Services on any Ravensdown premises until the Supplier complies. The Supplier is not entitled to compensation or postponement of the date for Delivery and/or Completion.
9.7 Material breach: The parties acknowledge that a failure by the Supplier to comply with the health and safety obligations and requirements in these terms will be a material breach of these terms.
9.8 Removal of personnel: The Supplier will immediately remove from Ravensdown’s premises any employee, or employee of a subcontractor, whom Ravensdown reasonably considers is acting in an incompetent or negligent manner or is a danger to health, safety or welfare, or who does not comply with any of Ravensdown’s policies.
9.9 Third parties:
10 ENVIRONMENTAL RISKS
10.1 Steps/plan: In Delivering any Goods or performing any Services the Supplier will take all practicable steps to minimise any environmental risks arising from the supply of the Goods and/or Services and will:
10.2 Warranties: In Delivering any Goods and/or performing any Services, the Supplier warrants (to the extent applicable) that it will not do or omit to do anything, or use materials, plant, equipment, substances or processes which:
10.3 Indemnity: The Supplier will indemnify Ravensdown against any Loss that Ravensdown suffers or incurs arising out of or in connection with any breach of an environmental law or requirement by the Supplier.
10.4 No limitation: This clause does not limit any of the Supplier’s other obligations under these terms.
11.1 Termination rights: Either party may terminate any outstanding Purchase Order, by giving written notice to the other, in the event that the other party:
11.3 Termination without prejudice: Termination of any Purchase Order will be without prejudice to any rights, liabilities or obligations of either party which have accrued up to the date of termination and will not affect the continuation in force of any clause intended to survive termination (including clauses 6, 12.2, 13 and 14).
12 INSURANCE AND INDEMNITY
12.1 Insurance: The Supplier will arrange and maintain with a reputable insurer at all times:
12.2 Indemnity: The Supplier will indemnify Ravensdown at all times from any Loss suffered or incurred by Ravensdown arising out of or in connection with any breach of these terms or any Purchase Order by the Supplier.
13 INTELLECTUAL PROPERTY
13.1 Warranty: The Supplier warrants that the Goods or the use of them by Ravensdown and/or the Services do not and will not infringe upon or violate any Intellectual Property rights of any third party. Without limiting the general indemnity in clause 12.2, the Supplier will indemnify Ravensdown at all times from any Loss suffered or incurred by Ravensdown arising out of or in connection with any claim by any third party that the Goods and/or Services supplied by the Supplier to Ravensdown infringe that party’s Intellectual Property rights.
13.2 Steps: In order to mitigate any damages, the Supplier will at its own expense use all reasonable endeavours to:
13.3 Plans, drawings and specifications: Unless otherwise provided in any Purchase Order, all plans, drawings, and specifications prepared or supplied by or on behalf of Ravensdown for the purposes of the manufacture and supply of Goods or Services:
13.4 Ownership: Any Intellectual Property rights created as a result of actions under any Purchase Order or these terms will be owned by Ravensdown. This includes algorithms, work product, source and object code, documents, drawings, specifications, designs, techniques, inventions, improvements and innovations. The Supplier waives, and will ensure all its personnel waive, any moral or author rights in that Intellectual Property.
14 CONFIDENTIAL INFORMATION
14.1 Confidential Information: Each party will keep the Confidential Information of the other party confidential at all times and will not disclose the Confidential Information to any person (other than to their personnel or agents with a need to know) or otherwise use the Confidential Information except to the extent:
14.2 Use: Each party agrees not to use or attempt to use any Confidential Information for its own advantage or in any manner which may damage the other party’s reputation or cause Loss.
14.3 Announcements: No announcement or public statement concerning the matters contemplated by these terms or any Purchase Order will be made at any time by either party without the prior written consent of the other party.
15 FORCE MAJEURE
15.1 Force majeure event: Non-performance by the Supplier or Ravensdown of any of its obligations (other than to pay money) under these terms or any Purchase Order will be excused, without liability for non-performance, during the time and to the extent that such performance is prevented, wholly or substantially, by Force Majeure. The Supplier’s only entitlement for Force Majeure, where applicable, is an extension of time to the delivery date or dates set out in the relevant Purchase Order.
15.2 Notice: The party claiming the benefit of this clause will promptly give written notice to the other party specifying the cause and extent of its inability to perform any of its obligations under these terms or any Purchase Order and the likely duration of such non-performance.
15.3 Required steps: In the meantime that party will take all reasonable steps to remedy or abate the Force Majeure. Performance of any obligation affected by Force Majeure will be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure.
15.4 Termination: If by reason of Force Majeure either party is unable to perform any obligation under these terms or any Purchase Order for a period of 30 days the other party may on giving 7 days’ written notice cancel any outstanding Purchase Order. Cancellation of any outstanding Purchase Order under this clause will not affect the accrued rights or liabilities of any party, nor will it affect the continuation in force of any of the clauses specified in clause 11.3.
16 DISPUTE RESOLUTION
16.1 Discussions: The parties will actively and in good faith discuss any dispute that arises between the parties with a view to resolving the dispute. Either party may initiate negotiations by giving written notice to the other party. Each party will promptly advise the other party of its representative in the negotiations and each representative must have authority to settle the dispute. Within 5 Business Days of the parties advising each other of their representatives, the representatives must enter into negotiations to try to resolve the dispute.
16.2 Arbitration: If the dispute is not resolved within the following 20 Business Days, or within a longer period agreed in writing by the representatives, the dispute will be finally determined by arbitration in Christchurch (or such other place agreed in writing by the parties) under the Arbitration Act 1996 by a sole arbitrator appointed by the parties or, failing agreement within 5 Business Days, by the President for the time being of the New Zealand Law Society (or his or her nominee) upon application by either party. The arbitrator’s decision will be final and binding on the parties (subject to manifest error).
16.3 Urgent relief: Nothing in this clause 16 precludes a party seeking or obtaining interlocutory relief against any other party or person where the party believes the relief is necessary for the urgent protection of the party’s rights or property.
16.4 No suspension during a dispute: During the resolution, negotiation or arbitration of any dispute, the Supplier will continue providing the Goods and/or Services in accordance with this agreement.
17.1 Notices: Every notice or communication given under these terms or any Purchase Order (a notice) must be in writing and delivered by hand or sent by prepaid courier or email to that party’s address for notice set out in the relevant Purchase Order (or as otherwise designated by that party in writing to the other party).
17.2 Receipt of notices: A notice will be deemed to have been received:
(a) if delivered by hand, at the time of delivery;
(b) if sent by prepaid courier, on the 3rd Business Day after the date of mailing;
(c) if sent by email, on the day of transmission provided the party who sends the notice or communication receives a return email from the other party acknowledging receipt of the email, in each case provided that notices received after 5:00pm on a Business Day are deemed to have been received on the next Business Day.
18.1 Entire agreement: These terms (and each relevant Purchase Order) represent the entire agreement between the parties in respect of the supply of Goods and/or Services covered by that Purchase Order, and replace all earlier negotiations, representations, warranties, understandings and agreements, whether oral or written relating to such matters.
18.2 Relationship of the parties: Nothing in these terms or any Purchase Order constitutes a partnership, joint venture or relationship of employer and employee between the parties. Except as otherwise provided in these terms or any Purchase Order, neither party may act or hold itself out as an agent or representative of the other party, nor assume or create any obligations on behalf of the other party.
18.3 Assignment: The Supplier may not assign all or any of its rights and obligations under these terms or any Purchase Order without Ravensdown’s prior written consent, which consent may be given or withheld in its sole discretion.
18.4 Subcontracting: The Supplier may only subcontract the performance of any of its obligations with Ravensdown’s prior written consent, which consent may be given or withheld in its sole discretion. The Supplier will remain fully responsible for the performance of any obligations which have been subcontracted.
18.5 Severability: Each term of these terms is separately valid and binding. If any reason any party cannot rely on any term, all other terms will remain valid and binding.
18.6 No waiver: No delay or failure to act is a waiver. No waiver is effective unless it is in writing and then it will be effective only to the extent that it is expressly stated to be given. . A waiver of a breach is not a waiver of any other breach.
18.7 Costs: Each party will meet its own costs in relation to the negotiation, preparation and implementation of any Purchase Order.
18.8 United Nations convention: The United Nations Convention on Contracts for the International Sale of Goods does not apply to these terms or any Purchase Order.
18.9 Governing law: These terms are governed by New Zealand law, and the New Zealand Courts have exclusive jurisdiction in respect of the terms.
19 DEFINITIONS AND CONSTRUCTION
19.1 In these terms, unless the context requires otherwise:
Business Day means any day of the week (other than Saturday, Sunday and statutory holidays) on which registered banks are open for general banking business in Christchurch (and does not include any day during the period commencing on 25 December of one year and ending on 4 January of the next year).
Confidential Information means:
Complete means the completion of the performance of the Services in the manner specified in the Purchase Order, and Completion has a corresponding meaning.
Deliver means deliver the Goods in full in good order and condition in the manner and to the place specified in the Purchase Order, and Delivery has a corresponding meaning.
Fees means the fees to be paid by Ravensdown to the Supplier for Goods and/or Services as set out in the relevant Purchase Order or otherwise agreed in writing between the parties.
Force Majeure means any event or circumstance beyond the control of the party claiming the benefit of clause 15, which that party is unable to prevent or overcome by the exercise of reasonable care and at a reasonable cost, but does not include any event which the party affected could have prevented or overcome by exercising a standard of reasonable care or a lack of funds for any reason or by having in place business continuity arrangements (including remote working capability) generally expected of parties similar in nature to the affected party operating in accordance with best industry practice.
Goods means the goods supplied to Ravensdown under these terms by the Supplier as described in a Purchase Order.
GST means goods and services tax properly chargeable under the Goods and Services Tax Act 1985.
Hazardous Goods means any Goods which may impair human, plant or animal health or may adversely affect the health or safety of any person or the environment or cause damage to any property and includes any hazardous substance within the meaning of that term in the Hazardous Substances and New Organisms Act 1996.
Intellectual Property includes copyright and all rights conferred under statute, common law or equity in relation to inventions (including patents), registered or unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity, including any rights under a patent, trade mark, service mark, copyright, registered design, trade secret or similar proprietary right relating to any Goods or Services.
Loss means any loss, damage, costs, liabilities or expenses, including property damage, environmental damage, compensation payable to any person, fines, consequential loss, indirect loss, loss of profits, and legal fees and costs (whether in relation to any claim or otherwise), where a claim includes any liability, claim, action, notice, demand or proceeding of any kind.
Material Safety Data Sheet means a document in the form specified from time to time by Ravensdown which contains specific information as to the identification and safety of a product including product identification, health hazard information, precautions for use, safe handling information and other additional relevant information pertaining to the applicable Hazardous Goods.
Purchase Order means a document (whether electronic or paper based) which evidences an order by Ravensdown to the Supplier to supply Goods and/or Services (whether such document is called a purchase order or not), and where the Purchase Order has been changed in accordance with clause
2.3 means the Purchase Order as changed.
Services means any activity which the Supplier agrees to undertake pursuant to a Purchase Order other than the sale of Goods.
Supplier means the counterparty to the relevant Purchase Order.
19.2 In the construction of these terms, unless the context requires otherwise:
Business Days: anything required by these terms or any Purchase Order to be done on a day which is not a Business Day may be done effectually on the next Business Day.
Currency: a reference to any monetary amount is to New Zealand currency, unless otherwise specified.
Inclusion: referring to anything after the word “including”, “include” or “includes” does not limit what else might be included and any such reference is without limitation to what else might be included.
No rule of construction: no rule of construction (including the contra proferentem rule) applies to the interpretation of these terms or any Purchase Order to the advantage or disadvantage of any one party on the basis that a party prepared the terms or any relevant part of it.
Parties: a reference to any person includes that person's personal representatives/successors and permitted assigns.
Person: a reference to a person includes a corporation sole and also a body of persons, whether corporate or unincorporate.
Statutes and Regulations: a reference to an enactment or any regulations is a reference to that enactment or those regulations as amended, or to any enactment or regulations substituted for that enactment or those regulations.
Time: references to time are to New Zealand time.