PURCHASE ORDER TERMS AND CONDITIONS (GOODS & SERVICES)

ULTRAFAST FIBRE LIMITED

PURCHASE ORDER TERMS AND CONDITIONS
(GOODS & SERVICES)

Current as at: 8 February 2020

Thank you for choosing Ultrafast Fibre as a supply partner.

KEY INFORMATION FOR SUPPLIERS

  • You must obtain a purchase order from us before supplying goods and/or services to us. 
  • The purchase order relating to the goods and services you provide to us must be included on your invoice. 
  • If there isn’t a valid purchase order number shown on an invoice it may be returned to you or delay payment.
  • Unless you have an existing contract with us, our standard purchase order terms and conditions (goods & services) set out below will apply to all purchase orders. 

GLOSSARY

For the purposes of these Conditions of Purchase, the following definitions shall apply. 

Delivery Point

This means the place specified as the delivery point in an Order

Domestic

This means that the Seller is located within New Zealand

Goods

This means the goods specified in an Order that are to be supplied by the Seller to Ultrafast Fibre Limited  on the terms set out in these Purchase Order Terms

GST

This means goods and services tax payable under the GST Act or any similar tax under any replacement legislation;

GST Act

This means the Goods and Services Tax Act 1985 (as amended);

International

This means that the Seller is located outside New Zealand

Ultrafast Fibre Limited  

This means Ultrafast Fibre Limited (New Zealand Company Number 3226213) and its successors and permitted assigns.

Order

This means a purchase order issued by Ultrafast Fibre Limited  to the Seller

Personal Property Securities Register

This means the electronic register maintained by the New Zealand Companies Offices (on behalf of the New Zealand Ministry of Economic Development) and which allows security interests in personal property to be registered and searched in accordance with the New Zealand Personal Property Securities Act 1999

Seller

This means the person to whom the Order is addressed or any subcontractor, independent contractor or other class of person appointed by that person

Services

This means the services referred to in an Order that are to be supplied by the Seller to Ultrafast Fibre Limited  on the terms set out in these Purchase Order Terms 

Tax Invoice

This means an invoice that complies with section 24 of the GST Act

1. GENERAL

Any Goods and/or Services purchased by Ultrafast Fibre Limited  from the Seller will be purchased on the terms set out in these Purchase Order Terms only. This Agreement constitutes the entire agreement of the parties in respect of the matters covered by it and supersedes all previous agreements in respect of those matters, including the Seller’s terms (if any).

2. PRICE AND TAX

The purchase price of the Goods and/or Services will be.

    1. The purchase price of the Goods and/or Services will be:
      1. the price specified in the Order or, where no price is specified, the price current when the Goods and/or Services are ordered
      2. for Domestic Sellers, inclusive of all taxes and duties of any kind that either party is required to pay in respect of the sale of the Goods or the provision of the Services other than GST;
      3. for International Sellers, in New Zealand dollars, unless specified otherwise in the Order and inclusive of all taxes and duties of any kind other than those Ultrafast Fibre Limited  is responsible for paying.
    2. Following acceptance of an Order, the Seller must send Ultrafast Fibre Limited  a valid invoice that records the price of the Goods and/or Services separately from the value of any GST payable on those Goods and/or Services. Where any amendment is made to the amount payable for the Goods and/or Services after the invoice has been issued, the Seller must issue a credit or debit note (as the case may be) to Ultrafast Fibre Limited . 
    3. If required by Ultrafast Fibre Limited , the Seller will issue a Tax Invoice and any credit note or debit note issued by the Seller must comply with the GST Act.

3. FREIGHT AND INSURANCE

Liability for freight and insurance as between the Seller and Ultrafast Fibre Limited ;

    1. for Domestic sellers, will be as specified in the Order or, where liability is not specified, the Seller will pay for freight and insurance.
    2. for International sellers, all trade shall be governed by INCOTERMS® 2010. Where no Incoterm rule is specified on the order, the DDP (Delivered Duty Paid) rule shall apply.

4. DELIVERY OF GOODS

    1. The Goods are to be delivered by the Seller to the Delivery Point.
    2. Where a delivery date is specified in the Order, time is of the essence. The Seller indemnifies Ultrafast Fibre Limited  against any loss or damage suffered if the Seller does not deliver the Goods to the Delivery Point by the specified delivery date and, without prejudice to Ultrafast Fibre Limited’s other rights, Ultrafast Fibre Limited  may cancel the Order and/or all further deliveries of Goods.
    3. Delivery of the Goods will be deemed to have occurred when:
      1. the Goods have been unloaded at the Delivery Point; and
      2. Ultrafast Fibre Limited  has inspected the Goods; and
      3. Ultrafast Fibre Limited  or its agent has acknowledged receipt of the Goods.
    4. Without prejudice to Ultrafast Fibre Limited’s other rights, if the Seller delivers a different quantity of Goods to that specified in the Order, Ultrafast Fibre Limited  may accept all of the Goods or accept any lesser quantity and reject the rest of the Goods.
    5. The Seller will be liable for all costs and losses that Ultrafast Fibre Limited  incurs as a result of the delivery of the wrong quantity of the Goods or the wrong goods.
    6. The Seller must provide detailed delivery documents with every delivery of Goods, which must contain, as a minimum, Ultrafast Fibre Limited’s order number and order item number, the date, the Seller’s details, the quantity of Goods dispatched and an item description.

5. PROVISION OF SERVICES

Where the Order specifies a date by which the Services must be provided, time is of the essence. The Seller indemnifies Ultrafast Fibre Limited  against any loss or damage suffered if the Seller does not provide the Services by the specified date and, without prejudice to Ultrafast Fibre Limited’s other rights, Ultrafast Fibre Limited  may cancel the Order and/or all further provision of Services.

6. OWNERSHIP AND RISK

    1. Except as otherwise provided in these Purchase Order Terms, ownership of and risk in the Goods will pass to Ultrafast Fibre Limited  once the Goods are delivered to, inspected by, and accepted by Ultrafast Fibre Limited . Acceptance as to ownership of the Goods does not defeat the Seller’s warranties, or Ultrafast Fibre Limited’s rights of return, or act as a waiver of any of Ultrafast Fibre Limited’s other rights.
    2. the Seller bears the risk of loss or damage to Goods until ownership of those Goods passes to Ultrafast Fibre Limited  in accordance with the preceding clause or the terms of the Order.

7. INSPECTION

    1. Ultrafast Fibre Limited  or its representative has the right at all reasonable times to inspect the Goods (whether in the course of manufacture or not) and/or Services, whether at the Seller’s place of business or otherwise. 
    2. Notwithstanding such inspection or Ultrafast Fibre Limited’s acceptance of delivery, all Goods and, where applicable, Services are subject to Ultrafast Fibre Limited’s inspection and acceptance at its own premises following delivery or completion.
    3. If the Goods are to be installed or incorporated into any plant, machinery or any other part of Ultrafast Fibre Limited’s premises, such inspection and acceptance may be carried out after installation or incorporation under operating conditions.

8. RETURN OF GOODS

If Ultrafast Fibre Limited  cancels the Order or rejects any Goods in accordance with these Purchase Order Terms, Ultrafast Fibre Limited  may, at the risk and expense of the Seller, return the whole or any part of the Goods to the Seller and, at Ultrafast Fibre Limited’s discretion, require the Seller:

    1. to replace or repair the defective Goods at no  additional cost (including to avoid any doubt, the costs of returning the Goods, the freight and any customs or other duties payable in connection with the return); or
    2. refund in full any money paid to the Seller for  Goods that have been returned (including to avoid any doubt, the costs of returning the Goods, the freight and any customs or other duties payable in connection with the purchase of the Goods).

9. FAILURE TO PROVIDE SERVICES

If the Seller fails to provide all or part of the Services in accordance with these Purchase Order Terms, Ultrafast Fibre Limited  may obtain replacement services from a third party at the Seller’s cost.

10. PACKING

All Goods must be marked, packed and otherwise protected, at the Seller’s expense, for transit to the Delivery Point, in such manner as will prevent any damage to or deterioration of the Goods under normal transport and storage conditions having regard to the nature of the Goods.

11. WARRANTIES RELATING TO GOODS

The Seller warrants that the Goods:

    1. are free from any charges, encumbrances or other security interests;
    2. will, on delivery to Ultrafast Fibre Limited , be free from any liens, charges, encumbrances and security interests and no financing statement is or will be registered or maintained in respect of the Goods in the Personal Property Securities Register;
    3. will, for a period of 12 months after the supply of such Goods, remain fit for the purposes made known by Ultrafast Fibre Limited  (expressly or by implication) or, if purposes are not made known, will be fit for all the purposes for which goods of the type in question are commonly supplied or for which the Seller represents that they are or will be fit;
    4. are of merchantable quality and are free from defects in design, material and workmanship provided that where the Goods have been manufactured in accordance with any drawings, specifications or instructions provided by Ultrafast Fibre Limited , the Seller warrants only that the Goods conform to such drawings, specifications or instructions, are of sound material and workmanship, and are free from any defects;
    5. where the Goods have been manufactured by a third party, Ultrafast Fibre Limited  will receive the full benefit of all warranties given by that third party manufacturer in respect of those Goods;
    6. correspond with the sample, demonstration model or description where the sale is by sample, demonstration model or description, as the case may be; and
    7. will not be supplied to Ultrafast Fibre Limited  on terms that would allow the Seller or any third party to have access to any of Ultrafast Fibre Limited’s premises to recover the possession of the Goods.

To the extent permitted by law, the above warranties are in lieu of and to the exclusion of any express or implied conditions or warranties, statutory or otherwise, relating to the quality and description of the Goods.

12. WARRANTIES RELATING TO SERVICES 

The Seller warrants that the Services:

    1. will be provided in a timely manner in compliance with these Purchase Order Terms;
    2. will be performed with due care, skill and diligence by competent and qualified persons; and
    3. will be fit for the purposes made known by Ultrafast Fibre Limited  to the Seller (expressly or by implication) or, if no purposes are made known, for all the purposes for which Services of the type in question are commonly acquired or for which the Seller represents they are or will be fit.
    4. The Seller warrants that it has obtained all licences, authorisations and other formalities necessary for the manufacture (and for International Sellers the export) of the Goods and/or the provision of the Services.
    5. Without limiting Ultrafast Fibre Limited’s rights under these Purchase Order Terms or otherwise, if the Seller breaches any of the, Ultrafast Fibre Limited  may:
      1. in the case of Goods, reject all of the Goods or any of them and obtain from the Seller, at Ultrafast Fibre Limited’s option, a refund of the purchase price paid in respect of the rejected Goods or replacement Goods; or
      2. in the case of Goods, accept the Goods or any of them and obtain from the Seller damages in compensation for any reduction in value of the Goods below the purchase price paid or payable for the Goods; or
      3. in the case of Services, require the Seller to stop providing the Services and obtain replacement services from a third party at the Seller’s cost.
    6. Ownership of any Goods rejected under shall remain with the Seller and those Goods will continue to be at the Seller’s sole risk.

13. INDEMNITY AND INSURANCE

    1. The Seller indemnifies Ultrafast Fibre Limited  for all claims, costs, demands, expenses, liabilities, damages or losses of any nature, arising out of or in connection with the Seller’s failure to comply with these Purchase Order Terms.
    2. The Seller shall hold, and keep current until such time as Ultrafast Fibre Limited  has accepted the Goods or the Seller has provided the Services to the satisfaction of Ultrafast Fibre Limited  (as the case may be), public liability insurance and, if Ultrafast Fibre Limited  requires, professional indemnity insurance in relation to the Goods and/or Services. At Ultrafast Fibre Limited’s request, the Seller must provide Ultrafast Fibre Limited  with copies of certificates containing details of the required policies.
    3. Without prejudice to any other remedies available to Ultrafast Fibre Limited , if the Seller provides any Services or constructs, inspects or delivers any Goods to Ultrafast Fibre Limited  at the Delivery Point or one of Ultrafast Fibre Limited’s other premises, the Seller will, at its own expense, indemnify, hold harmless and defend Ultrafast Fibre Limited  and its officers, agents, contractors and employees for any loss, liability or demand, or the payment of any sum of money by reason of any damage to any property, that may occur in connection with the construction, inspection or delivery of the Goods and/or the provision of the Services.

14. HEALTH AND SAFETY 

If it provides Goods and/or Services at Ultrafast Fibre Limited’s premises, the Seller must ensure that:

    1. its employees, contractors and agents are competent in health, safety and environmental matters and that they at all times identify and exercise all necessary precautions for the health and safety of all persons and the protection of the environment;
    2. it complies with all applicable New Zealand legislation including (without limitation) the Health and Safety at Work Act 2015;
    3. it complies with all of Ultrafast Fibre Limited’s safety requirements and procedures;
    4. it performs appropriate health, safety and environment risk assessments and implements any necessary preventative controls prior to providing the Goods and/or Services;
    5. it immediately reports to Ultrafast Fibre Limited  all incidents involving injury or potential injury to any person or the environment or damage to property;
    6. Ultrafast Fibre Limited’s premises are left secure, clean, orderly and fit for use; and
    7. all Ultrafast Fibre Limited’s property, including (without limitation) all security swipe cards, keys, books, records and papers, is returned to Ultrafast Fibre Limited  once the Seller has provided those Goods and/or Services.

15. INTELLECTUAL PROPERTY RIGHTS

    1. The Seller warrants that the sale or use of the Goods and/or the supply of the Services will not infringe any patent, design, trade mark, copyright or other intellectual property right of a third party or result in Ultrafast Fibre Limited  becoming liable for the payment of any royalties or other fees.
    2. Any intellectual property created by the Seller in the course of providing the Goods or the Services will be owned by Ultrafast Fibre Limited .
    3. The Seller will, at its own expense, indemnify, hold harmless and defend Ultrafast Fibre Limited  and its officers, agents, contractors and employees for any loss, damage, expense, liability, claim or demand for actual or alleged infringement of any patent, design, trade mark, copyright or other intellectual property right of a third party, arising from the purchase, use or sale of the Goods, supply of the Services, or any other dealings arising under these Purchase Order Terms.
    4. All plans, drawings, specifications and other technical or engineering data relating to the Goods and/or Services supplied by or on behalf of Ultrafast Fibre Limited  to the Seller, and any copies or patterns made from those documents, remain Ultrafast Fibre Limited’s exclusive property and the Seller will only use them for the purposes of the Order and will return them to Ultrafast Fibre Limited  on demand.

16. VARIATIONS TO SPECIFICATIONS OR INSTRUCTIONS

Ultrafast Fibre Limited  may amend any of specifications or instructions for Goods and/or Services (Variation) and the Seller must comply with any notification of an Variation. If an Variation results in a decrease or increase in the Seller’s costs, or in the time for providing the Goods and/or Services, the parties may agree, in writing, to adjust the price and/or the time for providing the Goods and/or Services, provided that the Seller notifies Ultrafast Fibre Limited  of the request for such an adjustment within seven days after receipt of the Variation notification.

17. PAYMENTS

    1. Unless otherwise agreed in writing between the parties, Ultrafast Fibre Limited  is to pay for the Goods and/or Services in accordance with any terms set out in the relevant Order, or, if no such terms are set out, on the 20th day of the month following the date of the invoice or Tax Invoice for the Goods and/or Services submitted by the Seller, unless there is a dispute regarding the invoice or Tax Invoice.
    2. Unless otherwise agreed in writing between the parties, Ultrafast Fibre Limited  will direct credit the payment for the Goods and Services into the Seller’s bank account. Ultrafast Fibre Limited  will notify the Seller of that payment by remittance advice to the Seller on or before the day of the payment.
    3. Payment shall not prejudice Ultrafast Fibre Limited’s right to reject any Goods and/or Services for breach of warranty or to obtain a refund for such Goods and/or Services.
    4. Ultrafast Fibre Limited  will not be liable to pay for any goods delivered in excess of the amounts specified in any Order.

18. CANCELLATION OF AN ORDER

    1. Unless previously withdrawn by Ultrafast Fibre Limited , an Order is open for acceptance by the Seller for the period stated in the Order or, when no such period is stated, for a period of three business days from the date of the Order.
    2. Ultrafast Fibre Limited  may cancel an Order, with immediate effect, by notice to the Seller, if the Seller:
      1. fails to perform any of its obligations under these Purchase Order Terms and the failure has not been remedied within three business days of receipt of a notice by the Seller requiring the failure to be remedied;
      2. has appointed a receiver, receiver and manager, liquidator, statutory manager, passes a resolution for winding up, or assigns its estate or any substantial part of it for the benefit of its creditors; or
      3. is unable to pay its debts in the ordinary course of business or is insolvent.
    3. Ultrafast Fibre Limited  may at any time, by notice in writing to the Seller, cancel the Order in respect of any undelivered Goods or uncompleted Services. If the Order covers:
      1. standard stock goods or standard services, Ultrafast Fibre Limited’s only obligation to the Seller is to pay for Goods delivered, or Services provided, prior to the date of cancellation; and
      2. Goods or Services manufactured or provided, or to be manufactured or provided, to Ultrafast Fibre Limited’s specifications or specifications prepared by the Seller for Ultrafast Fibre Limited , then, on receipt of the cancellation notice, the Seller must immediately stop all performance under the Order except as Ultrafast Fibre Limited  otherwise directs.
    4. Where the Seller is not in default of its obligations under these Purchase Order Terms, Ultrafast Fibre Limited  must, on cancellation pay to the Seller:
      1. all reasonable costs directly incurred by the Seller in connection with the Order up to and including the date of cancellation; and
      2. such other reasonable costs, including cancellation charges under any subcontract, as the Seller may establish to the satisfaction of Ultrafast Fibre Limited, provided however that the total cancellation payment plus any previous payment made by Ultrafast Fibre Limited  to the Seller for the Goods and/or the Services, as the case may be, must not exceed the total price stipulated in the Order. On such payment, the ownership of all Goods and uncompleted work shall pass to Ultrafast Fibre Limited.
      3. The expiry or termination of these Purchase Order Terms is without prejudice to the rights and obligations of the parties accrued up to and including the date of expiry or termination.

19. LEGAL AND CYBERSECURITY COMPLIANCE

The Seller must comply with all applicable laws, rules, regulations, bylaws, standards, codes of practice, and Ultrafast Fibre Limited’s current policies and procedures in providing the Goods and Services.

Where the Seller’s employees and/or representatives are accessing any Ultrafast Fibre Limited  information, data or systems, the Seller will comply with the current version of Ultrafast Fibre Limited’s Supplier Cybersecurity Policy available from security@ultrafast.co.nz.  The Supplier Cybersecurity Policy is incorporated into these Purchase Order Terms by reference, which means it forms part of the terms of these Purchase Order Terms.

20. WAIVER

    1. No waiver by a party of its rights under these Purchase Order Terms is effective unless it is in writing signed by that party.
    2. A waiver by Ultrafast Fibre Limited  pursuant to this clause will not prejudice its rights in respect of any subsequent breach of these Purchase Order Terms by the Seller.
    3. No failure by Ultrafast Fibre Limited  to exercise, and no delay in exercising, a right under these Purchase Order Terms will operate as a waiver of that right, nor will a single or partial exercise of a right preclude another or further exercise of that right or the exercise of another right.

21. SEVERABILITY

If any provision of these Purchase Order Terms is held invalid, unenforceable or illegal for any reason, these Purchase Order Terms remains otherwise in full force apart from such provision that will be deemed deleted.

22. AMENDMENT

No amendment to these Purchase Order Terms is effective unless it is in writing signed by both parties.

23. ASSIGNMENT AND SUBCONTRACTING

The Seller must not assign these Purchase Order Terms or subcontract any of its obligations under these Purchase Order Terms without Ultrafast Fibre Limited’s prior written consent.

24. RELATIONSHIP OF THE PARTIES

The relationship of the parties is one of independent contractors. Nothing in these Purchase Order Terms is or will be taken as constituting the relationship of employer/employee, partners or joint-venturers between the parties.

25. INCONSISTENCY

To the extent of any inconsistency between these Conditions of Purchase and the Order, the terms of the Order will prevail.

26. DISPUTES

    1. The parties agree that any dispute of whatever nature arising between Ultrafast Fibre Limited  and the Seller is to be notified in writing by the disputing party to the other (Dispute Notice). On receipt of a Dispute Notice, each party is to use its best endeavours to resolve the dispute by discussion, meeting and/or other informal means.
    2. If the dispute is not resolved by discussion, meeting and/or other informal means within 10 business days of the date of the Dispute Notice, then the parties may agree to submit the dispute to arbitration pursuant to the Arbitration Act 1996 (excluding Clauses 4 and 5 of the Second Schedule), or, failing agreement, either party may pursue resolution of the dispute through legal proceedings before the New Zealand courts.
    3. This clause does not affect either party’s right to seek urgent interlocutory relief.

27. RIGHTS AND RESPONSIBILITIES THAT CONTINUE

The provisions of clause will continue to bind the parties notwithstanding the expiry or termination of these Purchase Order Terms or that either party may have ceased to be a party to these Purchase Order Terms.

28. APPLICABLE LAW

This Agreement is governed by, and is to be construed in accordance with, New Zealand law.

29. REFERENCES

In these Purchase Order Terms, a reference to any legislation or to any statutory provision includes: (i) any statutory amendment, modification or re-enactment of; (ii) any statutory provision substituted for; and (iii) all ordinances, by-laws, regulations, rules, by-laws, codes and statutory instruments (however described) issued under, that legislation or statutory provision (as the case may be).

30. EXCLUSION OF UNITED NATIONS CONVENTION

The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Purchase Order Terms or to the supply of Goods under these Purchase Order Terms.

END OF PURCHASE ORDER TERMS (GOODS & SERVICES)