Terms and conditions for supply of goods and/or services - BT MINING LIMITED
1.1. In these terms and conditions and in any contract to which these terms and conditions apply, unless the context otherwise requires:
1.1.1. Contract means a contract for the supply of Goods and/or Services by the Supplier to the Purchaser, comprised of these Terms and a Purchase Order accepted by the Supplier;
1.1.2. Goods means the goods sold or to be sold by the Supplier to the Purchaser under a Contract;
1.1.3. Purchaser means BT Mining Limited and includes its successors or assigns and all of its subsidiaries, whether partly or wholly owned;
1.1.4. Purchase Order means an order for Goods and/or a request for Services placed by the Purchaser whether by phone, fax, email, in person or otherwise;
1.1.5. Services means the services performed or to be performed by the Supplier under a Contract;
1.1.6. Supplier means the supplier of the Goods and/or Services;
1.1.7. Terms means these terms and conditions of trade to be read and construed with each Purchase Order accepted by the Supplier;and
1.1.8. Working Day means a day which is not a Saturday, Sunday or a Public Holiday and on which registered banks are open for general banking business in Christchurch New Zealand.
1.2. Unless the Purchaser and the Supplier otherwise agree in writing:
1.2.1. these Terms and the terms as out in any attached Purchase Order will apply to all sales of Goods and/or Services and no other terms or conditions will apply; and
1.2.2. in the event of any conflict arising between these Terms and any Contract these Terms will prevail.
2. SUPPLY OF GOODS AND THE PERFORMANCE OF SERVICES
2.1 The Supplier will:
2.1.1. supply the Goods to the Purchaser and the Purchaser will purchase the Goods from the Supplier; and/or
2.1.2. perform the Services for the Purchaser and the Purchaser will request the performance of the Services, described in the Purchase Order in accordance with these Terms.
3. FORMATION OF CONTRACT
3.1 Unless otherwise agreed in writing, these Terms apply exclusively to all Goods and/or Services supplied/performed by the Supplier to the Purchaser.
3.2 The Supplier, by giving written acceptance to the Purchaser by signing a Purchase Order or other document, by delivery of the Goods or by commencement of the performance of the Services will be deemed to understand and agree that these Terms will bind both parties and will, together with the Purchase Order or other acceptance document, constitute the Contract.
3.3 No other terms and conditions whether oral or written, including, without limitation any Supplier’s terms and conditions, whether precedent or subsequent in time will have any force or effect unless specifically agreed to in writing by both parties. The failure of either party to enforce its rights will not constitute a waiver of such rights or any other rights in the Contract.
3.4 The Supplier will use reasonable endeavours to source all Goods and/or Services ordered or quoted in order to fulfil the Purchaser Order.
4. PURCHASER'S PURCHASE ORDERS
4.1 The Supplier understands, undertakes and agrees that:
4.1.1. the Purchaser’s Purchase Order must not be filled at prices higher than tendered, quoted or last charged, as the case may be;
4.1.2. prices for the Goods are deemed to include freight, packaging, crating, carting or loading, unless expressly otherwise agreed to in the Purchase Order;
4.1.3. it will mail or email duplicate copies of invoices and bills of lading to the office of mailing, indicating on invoices cash discount terms for prompt payment by the Purchaser;]
4.1.4 it will render a separate invoice for each Purchase Order, shipment, delivery of the Goods or performance of the Services, as the case may be;
4.1.5 it will show the Purchase Order number on all invoices, packages, bills of lading and in all communications concerning the Purchase Order;
4.1.6. the Goods must be shipped by the route designated by the Purchaser and any additional freight or cartage costs incurred directly or indirectly as a result of the Supplier failing to observe this condition will be a liability of the Supplier and charged to the Supplier’s account; and
4.1.7. prices are deemed to include all taxes and duties payable by the Purchaser.
5. INSPECTION OF GOODS
5.1 Except as otherwise agreed in writing, the Purchaser reserves the right to inspect all deliveries of the Goods.
5.2 The Supplier will, at no cost to the Purchaser, make up any shortages identified during an inspection within 5 Working Days of being advised of the same.
5.3 Subject to the Purchaser's right to reject the Goods under clause 6 below, where all or any of the Goods have been damaged in transit, the Supplier will ensure replacement Goods are supplied within 5 Working Days of being notified by the Purchaser.
6. WARRANTIES AND REJECTION
6.1 The Supplier warrants to the Purchaser that the Goods will be fit for purpose and free from any manufacturing defects, and acknowledges that the Purchaser, in placing a Purchase Order, is relying on the skill and judgment of the Supplier in this regard.
6.2 If any of the Goods are found at any time to be defective in material, workmanship, quality, quantity or otherwise not in strict conformity with the specifications or requirements of the Purchaser, the Purchaser in addition to any rights to which it may have under warranties, law, or otherwise, will have the right to reject and return the Goods for full refund. Without limiting the above right of rejection, the Purchaser will have the right to require prompt replacement, repair or correction of defective work of the Goods and/or Services, as the case may be, at the Supplier’s risk and expense.
6.3 If the Supplier is unable or unwilling to effect such replacement, repair or correction, the Purchaser may do so by using its own workmen, goods or facilities or by outside contract, and will be entitled to charge the Supplier (and the Supplier must pay) for all costs of doing so or the Purchaser may set off any such costs against any amount payable by the Purchaser to the Supplier.
7. PERFORMANCE OF THE SERVICES
7.1 In performing the Services, the Supplier will exercise the degree of skill, care and diligence normally expected of a competent professional and devote such time and resources as is reasonably necessary for the proper and efficient provision of the Services to achieve the objectives required by the Purchaser.
7.2 The Supplier will perform the Services as an independent contractor and not as an employee of the Purchaser. Nothing in these Terms will be deemed to create an employer/employee relationship between the Purchaser and the Supplier. Further, the Supplier will not be regarded as an agent of the Purchaser and the Supplier’s actions do not bind the Purchaser in any capacity whatsoever.
7.3 Where applicable, the Supplier will obtain a Non-Resident Contractors Withholding Tax (NRCWT) exemption certificate in relation to the performance of the Services. However, if no NRCWT exemption certificate is provided by the Supplier then any applicable NRCWT will be deducted from the fees payable by the Purchaser at the time of payment under the Purchase Order. The NRCWT will be calculated at the applicable rate set at that time by the New Zealand Inland Revenue Department.
The Purchaser reserves the right to cancel a Contract at any time without penalty, relating to the supply of the Goods and/or the performance of Services in whole or in part upon written notice to the Supplier whether for cause or otherwise.
Time is of the essence for the delivery of the Goods and/or Services to the Purchaser under the Contract. In the event of delay in the delivery of the Goods and/or Services, the Purchaser may terminate the Contract and the Supplier indemnifies the Purchaser for any losses the Purchaser suffers as a result of the Supplier’s delay.
10. GOODS IN EXCESS OF ORDER
10.1 All Goods delivered to the Purchaser in excess of the sum ordered under a Purchase Order, are the Supplier’s sole responsibility.
10.2 The Purchaser reserves the right to reject and return at the Supplier’s expense all Goods in excess of the quantity ordered.
11.1 The Supplier indemnifies and holds harmless the Purchaser from any and all claims, damages, costs, expenses, liabilities and other losses (including special and consequential damage and damages for loss of use) arising directly or indirectly from any breach of these Terms and from any claims, damages, costs, expenses and other losses of whatsoever nature and kind or injury to persons and the destruction of or damage to property arising directly or indirectly from the manufacture, installation or supply of the Goods and/or performance of the Services.
11.2 In the event that the Purchaser is held liable to the Supplier in connection with the supply of Goods or performance of Services, the liability of the Purchaser will be limited to the total price payable under the Contract for the supply of the relevant Goods or the performance of the relevant Services, or the cost of replacement of the relevant Goods or the re-performance of the relevant Services, whichever is less.
12.1 In providing the Goods and/or performing the Services, the Supplier may have access to confidential information relating to and about the Purchaser. The Supplier covenants that it will keep all such information strictly confidential and will use the information solely for the purposes of providing the Goods and/or the Services.
12.2 The Supplier will not, except with the express written consent of the Purchaser, release information relating to the Goods and/or the performance of the Services for advertising, promotional or technical purposes or otherwise disclose it publicly in any fashion, nor will the name of the Purchaser be used by the Supplier for or in connection with any advertising or promotional purpose of the Supplier.
13. INTELLECTUAL PROPERTY
13.1 The ideas, know-how inventions, discoveries, improvements or techniques relating to the Services will be and will remain the intellectual property of the Purchaser.
13.2 The Supplier does not, by reason of the supply of Goods or the performance of the Services, acquire any rights to the copyright, patent, trademark, design, or any other intellectual property rights held by the Purchaser.
13.3 The Supplier warrants that the supply of the Goods (and their subsequent use by the Purchaser) and/or performance of the Services will not cause the Supplier or the Purchaser to infringe any copyright, patent, trademark, design, or any other intellectual property of the Supplier or of any third party.
13.4 The Supplier agrees to indemnify and hold harmless the Purchaser from any costs, losses, liabilities, claims or actions arising from any alleged infringement of any patent, design, trademark, copyright or other intellectual property as result of the use or supply of the Goods and/or the performance of the Services.
14. PROPERTY FURNISHED BY THE PURCHASER
14.1 All tools, equipment or material supplied by the Purchaser to the Supplier or specifically paid for by the Purchaser, and any replacement thereof or any materials attached thereto, will be and will remain the personal property of the Purchaser.
14.2 The Supplier will not substitute any property of the Purchaser’s and will not use such property except in fulfilling the Purchaser’s orders. In respect of the Purchaser’s property, the Supplier’s custody or control will be at the Supplier’s risk, it will be kept insured by the Supplier at the Supplier’s expense in an amount equal to the replacement cost of loss payable to the Purchaser and it will be subject to removal at the Purchaser’s written request, in which event the Supplier will prepare such property for shipment and will redeliver it to the Purchaser in the same condition as originally received by the Supplier (reasonable wear and tear excepted).
15. HAZARDOUS AND DANGEROUS GOODS
15.1 Any hazardous and dangerous Goods must be transported by the Supplier or Supplier’s agent in accordance with all relevant legislation covering the handling and transportation of hazardous and dangerous goods.
15.2 The Purchaser accepts no responsibility whatsoever for the Supplier or the Supplier’s agent’s failure to handle and transport hazardous and dangerous goods in accordance with applicable legislation and associated regulations and the Supplier indemnifies and holds harmless the Purchaser for any direct or indirect loss, damage or claims arising as a result of those actions.
16. HEALTH AND SAFETY
16.1 The Supplier and the Purchaser agree to ensure that the parties strictly comply in all respects with the relevant provisions of the Health and Safety at Work Act 2015 (HASAW), associated Regulations and any relevant Codes of Practice, as they may be amended from time to time.
16.2 All practicable steps must be taken by the Supplier and the Purchaser in relation to ensuring that there is a safe workplace including (but not limited to) the safety of the Purchaser’s and/or the Supplier’s employees, subcontractors or other personnel working at the respective party’s workplace(s).
16.3 When visiting any workplace of the Purchaser the Supplier will ensure that its employees and agents abide by and cooperate with all health and safety requirements of the Purchaser.
16.4 The parties agree to:
16.4.1. comply with any reasonable directions received from each other as applicable in relation to health and safety, which may include following any policies, procedures and/or specific site rules in relation to the health and safety of the site; and
16.4.2. consult, co-operate and co-ordinate activities where the parties share health and safety duties pursuant to the HASAW.
16.5 The Supplier or its agents (as the case may be) will advise the Purchaser of any known hazards in relation to the Goods and/or Services prior to or at the time of delivery or in relation to the Services, prior to commencement of the Services.
16.6 The Purchaser, prior to the delivery of the Goods and/or performance of the Services by the Supplier, will inform the Supplier of any known hazards at the applicable workplace of the Purchaser.
17. COMPLIANCE WITH LAWS
In relation to the Goods and/or Services, the Supplier will comply with all relevant laws applicable to the supply of the Goods and/or the Services and the operation of any equipment used in the performance of the Services.
18. PRICES AND PAYMENT
18.1 Unless otherwise specified, all prices in the invoice are in New Zealand Dollars, including GST and freight (if any).
18.2 Payment will be made to the Supplier by the Purchaser on the 20th day of the month following the month which the Supplier’s invoice was received.
18.3 The amount to be paid by the Purchaser will be limited to the payment amount stipulated by the Purchase Order and will not include any additional charges unless additional charges have been agreed by the Purchaser in writing.
18.4 It is the responsibility of the Supplier to ensure that the appropriate payment methods are provided in the Contract or provided on acceptance of the Purchase Order.
18.5 If a discount is allowed for payment within a certain time, the time for taking the discount will not begin to run until the date of the receipt of the invoice or the date of the delivery of the Goods and/or Services, whichever is the later. However, if any invoice is returned for correction, the time for taking the discount will not begin to run until the date of receipt of the corrected invoice.
19. TITLE AND RISK
19.1 Unless otherwise agreed to in writing by the parties, risk and title will pass from the Supplier to the Purchaser in the following circumstances when:
19.1.1 the Goods are delivered to the address provided by the Purchaser to the Supplier in the Purchaser Order; and
19.1.2 when the performance of the Services is deemed complete by the Supplier.
19.2 The Supplier acknowledges that prior to the delivery of the Goods and/or performance of the Services being complete, all risk will be deemed to be borne by the Supplier.
20. FORCE MAJEURE
20.1 If either party is prevented from supplying the Goods and/or the Services as a result of fire, flood, storm, explosion, act of war, earthquake, or any other similar cause beyond the reasonable control of either party which cannot be foreseen, or if foreseen then are unavoidable, which prevents, delays or hinders the performance of either or both parties under the Contract (Force Majeure), then the delay in performance will be deemed not to be a breach of either party’s rights or obligations under the Contract.
20.2 Immediately upon the occurrence of a Force Majeure, the Supplier and the Purchaser will hold discussions in good faith to agree upon actions to be taken to avoid further delay in the performance of the Contract.
20.3 If no agreement is reached after the Force Majeure, or if either party is excused from performance of its obligations under the Contract for a continuous period of 2 months from the date of the occurrence of the Force Majeure, then either party may terminate the Contract by written notice to the other.
21.1 If a dispute arises (Dispute) between the parties in relation to the supply of Goods and/or the performance of Services, then the parties will endeavour to settle the Dispute by way of good faith negotiation. If the parties are unable to resolve the dispute within five Working Days, the Dispute may be resolved in accordance with clause 21.2.
21.2 In the event that the Dispute is not resolved by negotiation, the matter may be referred to mediation by any party by written notice. In the event that the matter is referred to mediation, the parties will, within five Working Days of the matter being referred to mediation, agree on a mediator. If a mediator cannot be agreed on between the parties, a mediator will be appointed by the then President of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ). In the event the Dispute is not resolved by a completed mediation within a further 20 Working Days, any party may refer the matter to arbitration by written notice.
21.3 If a Dispute is not settled under clauses 21.1 and 22.2, then either party may submit the Dispute to be settled by arbitration by a sole arbitrator in accordance with the provisions of the Arbitration Act 1996. The arbitrator will be appointed by the then President of AMINZ. The arbitration will be conducted within the provisions of the Arbitration Act 1996. Arbitration will take place in Christchurch New Zealand, unless agreed otherwise between the parties. The parties agree that the decision reached at Arbitration will be final and binding on the parties.
21.4 The parties agree that all Disputes will be resolved in accordance with the procedures set out in this clause 21, however this clause 21, does not prevent any party from seeking urgent interlocutory or declaratory relief from a competent jurisdiction where, in that party’s reasonable opinion, that action is necessary to protect that party’s rights.
22. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
The parties agree that the Contract between the parties does not constitute a Security Agreement (as that term is defined in the PPSA) and no security interest is granted in the Goods for the purposes of the PPSA.
23. CONSUMER GUARANTEES ACT 1993
The parties agree that the Goods and/or the Services are acquired for the purposes of a business and that the Consumer Guarantees Act 1993 does not apply.
24.1 The Supplier may not assign, licence, sub-contract or transfer any of its rights or obligations under or in connection with any Contract to any third party without the prior written consent of the Purchaser.
24.2 The Purchaser may assign, licence, sub-contract or transfer any of its rights or obligations under or in connection with any Contract by giving written notice to the Supplier.
The Supplier will pay the costs and expenses including legal fees, on a solicitor and own client basis, incurred by the Purchaser in exercising any of its rights or remedies under the Contract or enforcing any of these Terms or other term of the Contract.
No amendments to any Contract will be effective unless in writing and signed by both parties.
27. GOVERNING LAW
The Purchaser and the Supplier agree that the supply of the Goods and/or the Services will be governed by and construed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.
Page last updated August 2017