General Cable New Zealand Limited
Conditions of Purchase
IT IS AGREED AS FOLLOWS
these Conditions of Purchase:
the existence of the Contract, its subject matter and the terms and
conditions contained in it; and
any information which is not public knowledge and which is obtained from
the other party pursuant to or in the course of the negotiation or
implementation of the Contract.
means these Conditions of Purchase between General Cable New Zealand Limited
(“GC”) and the Supplier for the sale and purchase of the Goods together with
the relevant purchase order and confirmation of order.
occurs at the earlier of when Goods are delivered to GC's premises as recorded
on the purchase order and when they are signed for and ‘Delivered’
has a corresponding meaning.
means the goods supplied or to be supplied by the Supplier to GC.
event” means where the Supplier suspends or ceases to conduct
its principal business or threatens to do so; becomes or is presumed to be
insolvent; makes or proposes to make any assignment, arrangement, compromise or
composition with, or for the benefit of, any of its creditors; has any of its
assets subject to any form of seizure or execution; has a receiver, liquidator,
administrator, statutory manager or any similar insolvency administrator
appointed; is removed from the Register of Companies; or suffers any analogous
property’ includes copyright, and all rights conferred under statute,
common law or equity in relation to inventions (including patents), registered
and unregistered trademarks, registered and unregistered designs, circuit
layouts, Confidential Information, know-how, and all other rights resulting
from intellectual activity in all fields, together with all right, interest or
licence in or to any of the foregoing.
means the price of the Goods determined in accordance with these Conditions
of Purchase which shall be in the currency specified on the Purchase Order, or
if not specified, New Zealand dollars.
means a quote issued by the Supplier to GC in relation to specific Goods.
means the specifications for Goods made to order by the Supplier for GC as
described in the Quote.
change order’ means a specification change order made in accordance
with clause 4.
day’ means a day other than a Saturday or Sunday, on which are banks in
Christchurch are generally open for business.
are used as a matter of convenience and shall not affect the interpretation of
Conditions of Purchase replace any existing written agreement between GC and
the Supplier for the supply of Goods by the Supplier to GC.
purchase order and the Supplier's confirmation of order (where the Contract
arises from a purchase order by GC) together with these Conditions of Purchase
shall form the Contract between GC and the Supplier.
there is a conflict between:
a purchase order and these Conditions of Purchase, these Conditions of
Purchase shall prevail;
a Quote and a purchase order, the purchase order shall prevail; and
these Conditions of Purchase and any terms of sale of the Supplier,
these Conditions of Purchase shall prevail.
agent or representative of GC is authorised to make any representations,
warranties, conditions or agreement not expressly confirmed by GC in writing
and GC is not in any way bound by any such unauthorised statements nor can any
such statements be taken to form a Contract or part of a Contract with GC.
Contract or purchase order (whether or not confirmed) may be varied or cancelled
without GC’s prior written consent and without payment of any variation or
cancellation charge prescribed by GC.
To the extent that any quotation or estimate or any other
document whatsoever submitted by the Supplier attempts to include terms that
are inconsistent with these Conditions of Purchase those terms shall not apply
and the provisions of these Conditions of Purchase shall prevail. Any
additional or different terms, included in any Quote or any other document
whatsoever submitted by the Supplier shall be of no effect unless expressly
agreed to in writing by GC.
orders bind the Supplier to the Delivery of the quantities of the Goods specified
in the purchase order at the Quoted Price (where the purchase order is made in
reliance on a Quote and Delivery is required before the expiry of the Quote) or
the Price determined in accordance with these Conditions of Purchase (e.g. per Price
list or agreed Contract) once the Supplier has confirmed acceptance of the
purchase order in writing to GC.
orders must specify:
the Goods and quantity required;
the Specifications (if necessary);
the required date and place of Delivery;
any relevant Quote number, Quoted Price
and Quote expiry date;
any agreed Price variations (ie for
metal or exchange rates);
the relevant Contract number (if applicable);
the Delivery address; and
all other relevant provisions.
Purchase orders may be cancelled with the Supplier's consent on
payment by GC of the actual costs incurred by the Supplier in manufacturing the
relevant Goods (if any).
to improve manufacture, including but not limited to, technological
improvements, reduction in cost or time of production;
to correct a problem in a design current at that time; or
to respond to a request from any of its customers for a change to the
design, manufacturing process or the Specifications.
The Specification change order is to specify:
the change to the Specifications;
the name and signature of the person with the authority to approve and
release the Specification change order;
the date from which the Specification change order is effective; and
whether the Specification change order is effective in respect of any or
all of the following:
new production; or
existing stock; or
If the Supplier accepts the request and confirms this to GC in
writing, the Supplier shall carry out and comply with the Specification change
order made under these Conditions of Purchase. The cost of complying with the Specification
change order shall be added to or deducted from the Price of Goods and will be
set in the Specification change order confirmation from the Supplier. Any
dispute over the appropriate adjustment shall be determined in accordance with
the procedure set out in clause 22.
If manufacturing or procurement has begun before a Specification
change order request is confirmed by GC to the Supplier any completed items,
work in progress or raw materials that cannot be altered or will not be
required to comply with the Specification change order will be invoiced to GC.
This will be at the previously agreed Price (in terms of completed items) or at
the cost of manufacture and processing the order to the date the Supplier
accepts in writing the Specification change order request.
Price for Goods will be:
as set out in the relevant Quote; or
in the absence of a Quote, as recorded by GC on a purchase order which
is then confirmed in writing to GC by the Supplier; or
in the absence of a purchase order which documents the Price, then by
using the agreed pricing applicable at the date of Delivery of the Goods.
Price will be DDP (Delivered Duty Paid) as defined by Incoterms 2010 published
by the International Chamber of Commerce and includes freight and any goods and
services tax and other taxes and duties assessed or levied in connection with
the supply of the Goods to GC unless otherwise specified. Where there is any
conflict between the terms of these Conditions of Purchase and the Incoterms specified
on the purchase order, the purchase order shall prevail.
Supplier agrees that where the Supplier does not stock the Goods required by GC
but agrees to import or purchase the Goods from a third party in order to meet GC's
purchase order, then the Price payable by GC shall be the Price charged by the
third party Supplier together with any costs incurred by the Supplier in
importing or purchasing the Goods such as rate of exchange, duty, freight and
change notifications will be subject to GC's prior approval.
The Supplier must comply with clause 6.2 before:
delaying Delivery of any good to GC;
suspending or cancelling GC's account with the Supplier or the Delivery
of any Goods; or
commencing any debt recovery proceedings.
the avoidance of doubt, the Supplier shall not be entitled to withhold Delivery
for any Goods where there is no dispute in relation to those Goods and if an
invoice relates to a Delivery where some Goods are in dispute and some are not,
then the Supplier must deliver the Goods that are not in dispute in accordance
with these Conditions of Purchase.
may offset any payments due to the Supplier while any overdue amounts payable
to GC remain outstanding.
the Supplier is in default in the performance of its obligations under the Contract
or any other Contract between GC and the Supplier then GC may, at its option,
suspend or terminate the Contract, and Delivery of all work in progress up to
the date of such suspension or termination shall be immediately Delivered to GC.
shall be made at the place specified in the relevant purchase order. The Supplier
will meet any costs incurred if Goods have been turned away and returned to a
depot. Off-loading shall be the responsibility and at the cost of GC.
date and place for Delivery specified in the relevant purchase order may be
changed at the request of GC.
will not accept Goods that have been damaged in transit.
The date and time stated for Delivery of Goods in a purchase
order shall be of the essence.
If the Supplier is, or is likely to become, unable to supply the Goods,
by the date and time specified in the purchase order, the Supplier shall:
advise GC immediately; and
use its best endeavours to provide alternative Goods that satisfy the
purchase order and that are (in GC's sole opinion) of equal or superior quality
and at no greater cost to GC.
If the Supplier appears, in GC's opinion, unlikely to or does not
deliver the Goods or suitable alternatives, by the date and time specified in
the purchase order, or the Supplier’s alternatives are unsuitable (in GC's sole
opinion) for any reason, GC may do one or all of the following:
terminate the purchase order;
recover from the Supplier the difference between the Price for the Goods
and the Price for the Goods that GC pays to the alternate Supplier.
Risk AND TITLE
of any loss, damage or deterioration of or to the Goods shall be borne by the Supplier
until the Delivery of the Goods.
will advise the Supplier in writing within twenty Working days of the date of Delivery
of the Goods should there be any discrepancy in the Goods which should have
been Delivered and the Goods actually Delivered including details of any
deficiencies in quantity, quality and so on (the “Notice"). Upon
the Supplier's receipt of the Notice, the Supplier will have twenty Working days
to investigate the details of discrepancies or deficiencies in respect of the Goods
as provided in the Notice and to either refund GC in full for the deficient Goods
or replace the Goods and deliver the replacement Goods to GC.
until the time of Delivery the Supplier will insure the Goods against all
appropriate risks and provide copies of all insurance policies or certificates
of currency to GC on request.
the context otherwise requires terms and expressions in this clause 11 that are defined in the Personal Property Securities Act 1999 (“PPSA”) shall have
the same meaning in this clause 11 as in the PPSA and references to the Goods
include references to any one of them.
grants the Supplier a security interest in the Goods as security for all
amounts owing by GC to GC and performance of GC’s obligations under the Contract.
shall ensure that it is always able to identify:
the Goods from any other Goods that may be in GC’s possession; and
the particular Goods to which any invoice relates.
to the Goods shall remain in the Supplier until there are no longer any amounts
owing to the Supplier by GC.
title to any particular Goods passes to GC, GC shall return those Goods to the Supplier
11.6 If GC
fails to comply with any term of the Contract or any other agreement between GC
and the Supplier, the Supplier or the Supplier's agent may, in addition to any
other rights and remedies either of them may have at law (including under any
statute), enter any land or building owned, occupied, or used by GC, to search
for and re-take possession of the Goods.
will not change its name without giving the Supplier fifteen (15) Working days'
notice of what its new name will be.
there are amounts owing by GC to the Supplier, GC shall, at the request of the Supplier,
promptly provide a written inventory of any dealings with the Goods, including
details of those Goods that have:
been sold by GC;
become an accession; or
been so manufactured, processed, assembled, or commingled that their
identity has been lost.
Where GC has
previously provided an inventory to the Supplier any subsequent inventory need
only include details of any dealings with the Goods since the most recent inventory.
If requested by the Supplier an inventory shall also include the amount and
location of any proceeds that GC is at that time holding on trust for the Supplier.
that property in the Goods is retained by the Supplier, GC is hereby authorised
to sell the Goods in the ordinary course of business. Such authority:
may be revoked by written notice from the Supplier at any time if the Supplier
deems the credit of GC to be unsatisfactory or GC is in default in the
performance of its obligations under the Contract or any other Contract between
the Supplier and GC; and
shall be deemed automatically revoked if GC enters into any composition
or arrangement with its creditors, passes a resolution for its liquidation or
the appointment of a voluntary administrator or a liquidator, voluntary
administrator or receiver is appointed.
reject any defective Goods ("Non-Compliant Goods") by
giving written notice to the Supplier;
require the Supplier to rectify the Non-Compliant Goods (as the case
may be) at the Supplier’s cost at any date and time nominated by GC; and
require the Supplier to refund to GC the full cost of the Goods.
the Supplier is unable to comply with clause 12.1(b) to GC's reasonable
satisfaction, GC may engage a substitute Supplier (at the Supplier's cost) to supply
GC shall have no obligation to pay for Non-Compliant Goods and,
if and to the extent GC has paid for any Non-Compliant Goods, GC shall be
entitled to set off such amounts against any payments due and owing by GC to
In providing the Goods, the Supplier shall:
maintain and comply with all necessary certificates, licences and
consents to supply the Goods;
comply with all applicable laws and industry codes of practice;
act with reasonable care, skill and diligence;
not damage or adversely affect GC's reputation or business operations; and
promptly respond to any reasonable requests for information made
by GC in relation to the Goods.
are fit for their intended purpose and free from defects;
are manufactured at all times by appropriately trained, qualified and
comply with these Conditions of Purchase; and
comply with any relevant statute, regulation, bylaw, industry standards
and code of practice.
The Supplier shall indemnify and hold GC harmless from any loss,
damage or liability suffered by GC which arises out of any defect or alleged
defect in the Goods or performance (or non-performance) of the Supplier's
obligations and duties pursuant to these Conditions of Purchase.
All rights, title and interest to any Intellectual property used
or relied upon by a party at the date of this Conditions of Purchase remain
vested in that party and nothing in these Conditions of Purchase entitle a party
to use or rely upon the other party's Intellectual property, except with the
prior written approval of the other party.
GC does not guarantee or make any representation to the Supplier
that it will acquire any minimum volume of Goods under these Conditions of
Purchase and GC will not be liable to the Supplier for any costs, expenses or
losses incurred or suffered by the Supplier arising directly or indirectly out
of the amount of Goods GC orders from the Supplier.
Without derogating from GC's other rights under these Conditions
of Purchase or at law (including its right to claim for damages), GC may set
off against any amounts owing by it to the Supplier all direct and indirect actions,
proceedings, penalties, fines, losses, damages, claims, liabilities, costs (including
legal costs) and expenses whatsoever that GC may incur or suffer directly or
indirectly, arising out of or in connection with:
engaging another Supplier (under clauses 9.3(b) and 12.2) to supply the Goods;
any act or omission of the Supplier;
any breach of the Contract; and
any Non-Compliant Goods; and
any breach by the Supplier of any other legislation or regulation
applicable to the supply of the Goods.
The Supplier shall take all reasonable care to ensure that the Delivery
and provision of the Goods does not disrupt the operations of GC, its employees
or other contractors or Suppliers and provide reasonable cooperation to any
other Supplier of GC where the Goods provided by such other Supplier interface
with or relate to the Goods.
Should a disruption occur in GC's sole opinion, GC may set off,
deduct or otherwise claim the direct cost of such disruption to GC or any other
Supplier of GC, reasonably determined by GC and at its sole discretion, from
any amount owing to the Supplier.
GC may terminate the Contract if the Supplier:
breaches any material obligation under the Contract and such breach is
incapable of being remedied, or if capable of being remedied such breach is not
remedied within ten Working days after the Supplier having been notified of the
is subject to an Insolvency event;
the Supplier assigns or transfers any of its rights or obligations under
the Contract in breach of clause 21.1 or
if an event set out in clause 26.1 occurs.
Termination of these Conditions of Purchase shall not affect any
rights or remedies each party may have accrued before the date of termination.
The Supplier shall not assign or transfer or otherwise
subcontract the whole or any part of its rights or obligations under these
Conditions of Purchase without GC's prior written consent. The entry by the Supplier
into a subcontract shall not relieve the Supplier from liability for the
performance of any obligations under these Conditions of Purchase. The Supplier
is liable to GC for the acts and omissions of each of its subcontractors as if
they were acts or omissions of the Supplier.
the discussions referred to in clause 22.1 fail to resolve the relevant dispute
within twenty Working days of the dispute arising, any party may (by written
notice to the other parties) require that the dispute be submitted for
mediation by a single mediator nominated by the President for the time being of
the Canterbury District Law Society or its successor. In the event of any such
submission to mediation:
the mediator will be deemed to be not acting as an expert or an
the mediator will determine the procedure and timetable for the
cost of the mediation will be shared equally between the parties to the
the dispute has not been resolved within twenty Working days of the mediator
being appointed or such longer period agreed in writing by the parties then the
parties agree to refer the dispute to arbitration in accordance with the
Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule of that
Act). The arbitration shall be conducted by one arbitrator appointed by the
parties to the dispute, if the parties to the dispute can agree upon one, or,
failing agreement, one arbitrator to be appointed by the President for the time
being of the Canterbury District Law Society or its successor. The parties
agree to be bound by the award of the arbitrator.
final settlement of any dispute, the parties shall continue to perform their
obligations under the Contract so far as possible as if no dispute had arisen.
in this clause 22 shall preclude a party from taking immediate steps to
seek equitable relief before a New Zealand Court prior to the award of an
arbitrator being given.
party shall use its best endeavours to ensure those of its officers, employees
and advisers to whom Confidential Information is disclosed in terms of clause 23.1 are aware of and comply with the confidentiality obligations imposed by that
a party is required by law to disclose any Confidential Information it will
immediately, and prior to such disclosure, advise the other party.
obligations under this clause shall survive termination or cancellation of this
as required by law, neither of the parties shall make any announcement or
disclosure relating to the existence of these Conditions of Purchase or its
subject matter or terms except in such form and manner, and at such time as the
notice, agreement and other communication (each a "communication") to
be given, delivered or made under these Conditions of Purchase is to be in
writing but may be sent by personal delivery, post (by airmail if to another
country) or email.
communication under these Conditions of Purchase will only be effective:
in the case of personal delivery, when delivered;
if posted or delivered to a document exchange, five Working days, in the
place of receipt, after posting (by airmail if to another country) or delivery
to the document exchange; and
if made by email, on the date and time at
which it enters the recipient's information system (as shown in a confirmation
of delivery report from the sender's information system, which indicates that
the email was sent to the email address of the recipient designated for the
purposes of these Conditions of Purchase,
any communication received or deemed received after 5pm or on a day which is
not a Working day shall be deemed not to have been received until the next Working
the original rights, powers, exemptions and remedies of GC shall remain in full
force notwithstanding any neglect, forbearance or delay in the enforcement
thereof. GC shall not be deemed to have waived any condition unless such
waiver shall be in writing under signature of GC or an authorised officer
thereof and any such waiver, unless the contrary shall be expressly stated,
shall apply to and operate only in particular transaction, dealing or matter.
contained in the Contract is deemed to constitute the parties partners nor,
except as otherwise expressly provided in the Contract constitute any party the
agent or legal representative of another party. No party has authority to act
or to assume any obligation or liability on behalf of any other party except as
expressly provided in these Conditions of Purchase.
Law and Jurisdiction
Contract shall in all respects be deemed to be a Contract made in New Zealand
and the construction, validity and performance of the Contract shall be
governed by New Zealand Law and the New Zealand courts will have exclusive jurisdiction
in relation thereto.
If any of the provisions of the Contract, or the application of
them to any person or circumstance, shall to any extent be invalid or
unenforceable, the same shall, to such extent only, be severable and the
remainder of these Conditions of Purchase or the application of any such term
or provision to persons or circumstances other than those in respect of which
it is being held invalid or unenforceable shall not be affected thereby and
each term and provision of these Conditions of Purchase shall be valid and
enforceable to the fullest extent permitted by the law.
These Conditions of Purchase may be executed in any number of
counterparts (including any facsimile or scanned PDF counterpart), each of
which shall be deemed an original, but all of which together shall constitute
the same instrument.
united nations convention on contracts
Where there is any inconsistency between the provisions of the
United Nations Convention on Contracts for the International Sale of Goods (as
enacted by Sale of Goods United Nations Convention Act 1994) and the terms of
these terms and conditions between the parties, the terms of these terms and
conditions shall prevail.