Terms & Conditions of Purchase – New Zealand
1. Entire Agreement
This contract is comprised of :
a) the purchase order;
b) these Terms and Conditions of Purchase; and
c) any other document signed by the parties or expressed to be forming part of this contract, and together they form the entire agreement (“Contract”).
The parties warrant that in entering into this Contract they have not relied upon any prior oral or written representation or warranty which is not expressly included in the Contract.
In the event of there being any ambiguity, discrepancy, or inconsistency of any nature between the documents comprising the Contract, the order of precedence to be applied is the order in which the documents are listed above.
2. Goods & Services
The Supplier will supply the goods and services specified in the purchase order (“Goods & Services”). In supplying the Goods & Services the Supplier will comply with all site requirements, codes and standards noted in any documentation provided, and directions given by LogiCamms.
The Goods & Services supplied under this Contract must be new (unless otherwise stated in the purchase order), of merchantable quality, and fit for the intended purpose stated in or reasonably ascertainable from the Contract.
In consideration for the supply of the Goods & Services by the Supplier, LogiCamms will pay the Supplier the contract price specified in the purchase order (“Contract Price”).
The Supplier is entitled to submit a claim for a payment in respect of the Goods & Services supplied to LogiCamms upon completion or delivery, or as may otherwise be stated in the purchase order. LogiCamms will assess the claim and pay the Supplier the amount which it assesses to be due within 30 days of receipt of the claim.
The Supplier is required to supply the Goods & Services by the date specified in the purchase order as may be adjusted in accordance with this clause (“Completion Date”).
If the Supplier is delayed in supplying the Goods & Services by the Completion Date by any breach of the Contract by LogiCamms (including its employees, contractors, and agents), then the Supplier will be entitled to an extension of time to the Completion Date equal to the duration of the delay. If the Supplier considers that it is entitled to an extension to the Completion Date then it must, within 7 days of becoming aware of the delay, provide LogiCamms with written notice of the cause and duration of the delay. If the delay continues for more than 7 days, then the Supplier is required to give further notice of the delay each 7 days thereafter and a final notice within 7 days of cessation of the delay. Should the Supplier fail to provide the notices strictly in accordance with this clause then it shall not be entitled to any extension to the Completion Date.
At any time and for any reason LogiCamms may in its sole and absolute discretion extend the Completion Date by written notice to the Supplier.
If the purchase order specifies that time is of the essence then, should the Supplier fail to supply the Goods & Services by the Completion Date, in addition to any other rights which LogiCamms may have, LogiCamms is entitled to terminate the Contract immediately by written notice to the Supplier.
If the purchase order specifies that liquidated damages are to apply then, if the Supplier fails to supply all of the Goods & Services by the Completion Date, LogiCamms is entitled to be paid by the Supplier liquidated damages at the rate specified in the purchase order for the period from the Completion Date up to and including the date on which the Supplier supplies all of the Goods & Services.
The Supplier is required to provide the security specified in the purchase order (“Security”) within 7 days from formation of this Contract. The Security must be valid and enforceable for the period specified in the purchase order or, if no such period is specified, until the date which is 12 months after the Completion Date.
The Security is provided for the benefit of LogiCamms and to help ensure the Supplier’s due compliance with the Contract. LogiCamms may have recourse to the Security if it believes that either the Supplier has not performed its obligations in accordance with the Contract, or if LogiCamms otherwise believes that it has a claim against the Supplier (whether in relation to the Contract or otherwise).
The Supplier will effect and maintain the insurances specified in the purchase order for at least the amount specified in the purchase order.
Upon request by LogiCamms, the Supplier must provide evidence that it has effected and maintained the required insurances.
Upon request by LogiCamms the Supplier will provide LogiCamms with access to inspect any part of the Goods & Services.
8. Limitation of Liability
Notwithstanding any other clause or statement in any of the documents forming part of the Contract, LogiCamms’ maximum aggregate liability arising out of, or in any way connected with, this Contract is limited to payment of the Contract Price.
Notwithstanding any other clause or statement in any of the documents forming part of the Contract, and to the fullest extent permissible at law, neither party will in any event whatsoever be liable to the other party for any Consequential Loss.
In this clause ‘Consequential Loss’ means any indirect, consequential, special, exemplary, or punitive damages, including (without limitation) any loss of production, loss of revenue, loss of profit or anticipated profit, loss of business reputation, business interruptions of any nature, loss of opportunities, loss of anticipated savings, or wasted overheads.
This clause survives termination of the Contract.
9. Intellectual Property
Any intellectual property created by or as a result of the supply of any Goods & Services under the Contract (“Created Intellectual Property”) is and remains the property of LogiCamms. LogiCamms grants the Supplier a perpetual, royalty-free, and non-transferrable licence to use any Created Intellectual Property for the purposes of supplying the Goods & Services in accordance with this Contract.
The Supplier warrants that it either owns or is lawfully authorised to use any intellectual property which it uses or supplies under this Contract.
The Supplier provides a warranty in respect of all Goods & Services supplied that those Goods & Services will be fit for purpose and free of any defects. This warranty runs for the period specified in the purchase order or, if nothing is specified in the purchase order, 12 months following completion of the supply of the Goods & Services (“Defects Liability Period”).
If, during the Defects Liability Period, LogiCamms finds any defect in the Goods & Services then LogiCamms may give the Supplier notice in writing of the defect and require the Supplier to make good the defect within a reasonable period of time as stated in the notice.
If the Supplier does not rectify the defect within the period stated in the notice, LogiCamms may:
a) reject the Goods & Services with the defect; or
b) make good, or engage another contractor to make good, the defect.
At LogiCamms’ request, the Supplier must:
a) re-perform any Services with a defect that LogiCamms rejects under clause (a) above free of charge; and
b) reimburse LogiCamms for any expenses LogiCamms incurs in making good any defect under clause (b) above.
Where the Supplier has made good any defect in accordance with this clause, those Goods & Services will be subject to the same Defects Liability Period as the original Goods & Services, commencing on the date the Supplier made good the defect.
LogiCamms’ rights under this clause do not in any way affect:
a) the Supplier’s obligations under this Contract; or
b) any of LogiCamms’ other rights under this Contract or at law, including the right to claim for any damage or loss it may suffer because of the Supplier’s failure to fulfil any of its obligations under this Contract.
11. Ownership, Risk and Security Interest in Property
Ownership and risk in any goods transfers from the Supplier to LogiCamms upon delivery of the goods to the site of the relevant project.
At all times prior to LogiCamms’ receipt of any goods to be supplied under this Contract, LogiCamms has a ‘security interest’ (as that phrase is defined in the Personal Properties Securities Act 1999) in the relevant goods.
12. Variation of Terms
This Contract may only be varied in writing, as agreed and signed by the parties or their relevant representatives.
Any waiver of any right or obligation under the Contract can only be done in writing signed by the relevant party.
No action, other than an action to waive in writing any right or obligation, or inaction by LogiCamms will constitute any waiver of any right or obligation under the Contract.
The Supplier indemnifies LogiCamms against all loss or damage which LogiCamms suffers caused, whether wholly or in part, directly or indirectly:
a) as a result of any breach of this Contract; or
b) by the performance of the Goods & Services.
The Supplier will pay to LogiCamms any amount required to be paid pursuant to this indemnity within 14 days of receipt of written request from LogiCamms.
If any part of the Contract is held to be invalid, unlawful, or unenforceable in any way and for any reason, the Contract will continue to apply to the fullest extent possible save and except for the part which is held to be invalid, unlawful, or unenforceable.
The Supplier is to treat all information obtained under, or in relation to, the Contract as confidential and not to disclose it to any other entity save as allowed pursuant to this clause.
The obligation of confidentiality does not apply to the extent that any disclosure is required by law or by a stock exchange listing rule, if the information is otherwise in the public domain, or as is agreed to in writing by LogiCamms.
Within 14 days of any request by LogiCamms, the Supplier agrees to return all documents (including all copies of such documents) it has received in relation to this Contract.
17. Termination for convenience
At any time and for any reason LogiCamms is entitled to terminate this Contract for its convenience.
In the event that LogiCamms terminates the Contract in accordance with this clause, LogiCamms will pay all costs reasonably incurred by the Supplier up to the date of termination.
LogiCamms is entitled to immediately terminate the Contract by the giving of written notice in the following circumstances:
a) if the Supplier fails to comply with any of its obligations under the Contract and, in the event that the failure is capable of being rectified, fails to remedy the failure to comply within 14 days of receipt of written notification by LogiCamms; or
b) if the Supplier is insolvent, becomes bankrupt, or becomes subject to any official management, receivership, liquidation, voluntary administration, winding up, or other external administration.
19. Governing Law and Jurisdiction
The Contract is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
LCM-PR-FRM-0017 Revision 0