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General Cable New Zealand Limited Conditions of Purchase

 

IT IS AGREED AS FOLLOWS

1.         Interpretation

1.1       In these Conditions of Purchase:

‘Confidential Information’ means:

(a)        the existence of the Contract, its subject matter and the terms and conditions contained in it; and

(b)        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.

‘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.

‘Delivery’ 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.

‘the Goods’ means the goods supplied or to be supplied by the Supplier to GC.

Insolvency 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 event.

‘Intellectual 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.

‘the Price’ 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.

‘Quote’ means a quote issued by the Supplier to GC in relation to specific Goods.

‘Specifications’ means the specifications for Goods made to order by the Supplier for GC as described in the Quote.

‘Specification change order’ means a specification change order made in accordance with clause 4.

‘Working day’ means a day other than a Saturday or Sunday, on which are banks in Christchurch are generally open for business.

1.2       Headings are used as a matter of convenience and shall not affect the interpretation of these conditions.

2.         Contract

2.1       These Conditions of Purchase replace any existing written agreement between GC and the Supplier for the supply of Goods by the Supplier to GC.

2.2       Any 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.

2.3       Where there is a conflict between:

(a)        a purchase order and these Conditions of Purchase, these Conditions of Purchase shall prevail;

(b)        a Quote and a purchase order, the purchase order shall prevail; and

(c)        these Conditions of Purchase and any terms of sale of the Supplier, these Conditions of Purchase shall prevail.

2.4       No 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.

2.5       No 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.

2.6       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.

3.         purchase orders

3.1       Purchase 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.

3.2       Purchase orders must specify:

(a)        the Goods and quantity required;

(b)        the Specifications (if necessary);

(c)        the required date and place of Delivery;

(d)        any relevant Quote number, Quoted Price and Quote expiry date;

(e)        the Price;

(f)         any agreed Price variations (ie for metal or exchange rates);

(g)        the relevant Contract number (if applicable);

(h)        the Delivery address; and

(i)         all other relevant provisions.

3.3       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).

4.         goods made to order

4.1       Where Goods are made to order for GC, GC may issue a Specification change order on the following grounds:

(a)        to improve manufacture, including but not limited to, technological improvements, reduction in cost or time of production;

(b)        to correct a problem in a design current at that time; or

(c)        to respond to a request from any of its customers for a change to the design, manufacturing process or the Specifications.

4.2       The Specification change order is to specify:

(a)        the change to the Specifications;

(b)        the name and signature of the person with the authority to approve and release the Specification change order;

(c)        the date from which the Specification change order is effective; and

(d)        whether the Specification change order is effective in respect of any or all of the following:

(i)         new production; or

(ii)        existing stock; or

(iii)       work-in-progress.

4.3       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.

4.4       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.

5.         Price

5.1       The Price for Goods will be:

(a)        as set out in the relevant Quote; or

(b)        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

(c)        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.

5.2       The 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.

5.3       The 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 insurance.

5.4       Price change notifications will be subject to GC's prior approval.

6.         Payment

6.1       Payment for Goods Delivered and payment of any other amounts invoiced by the Supplier shall be made by the end of the month following the date of the Supplier's invoice.

6.2       If GC does not pay any amount owing under any invoice, the Supplier shall meet with GC to discuss such delay and the parties shall work together in good faith using reasonable endeavours to ensure the Supplier receives payment as soon as GC is reasonably able to pay any amount owing.

6.3       The Supplier must comply with clause 6.2 before:

(a)        delaying Delivery of any good to GC;

(b)        suspending or cancelling GC's account with the Supplier or the Delivery of any Goods; or

(c)        commencing any debt recovery proceedings.

6.4       For 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.

6.5       GC may offset any payments due to the Supplier while any overdue amounts payable to GC remain outstanding.

6.6       If 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.

7.         Delivery

7.1       Delivery 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.

7.2       The date and place for Delivery specified in the relevant purchase order may be changed at the request of GC.

7.3       GC will not accept Goods that have been damaged in transit.

8.         Delay

8.1       The Supplier shall ensure that it supplies GC with the Goods at the dates and times and in the manner specified by GC in the purchase order and provide information on the status of supply as required by GC on a weekly basis.

9.         time for deliverY

9.1       The date and time stated for Delivery of Goods in a purchase order shall be of the essence.

9.2       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:

(a)        advise GC immediately; and

(b)        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.

9.3       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:

(a)        terminate the purchase order;

(b)        purchase equivalent Goods from an alternate Supplier and the Supplier shall cooperate, at its cost, with GC and any Supplier appointed to take over the provision of the Goods; and/or

(c)        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.

10.       Risk AND TITLE

10.1     Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Supplier until the Delivery of the Goods.

10.2     GC 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.

10.3     Up 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.

11.       Property

11.1     Unless 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.

11.2     GC 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.

11.3     GC shall ensure that it is always able to identify:

(a)        the Goods from any other Goods that may be in GC’s possession; and

(b)        the particular Goods to which any invoice relates.

11.4     Title to the Goods shall remain in the Supplier until there are no longer any amounts owing to the Supplier by GC.

11.5     Until title to any particular Goods passes to GC, GC shall return those Goods to the Supplier on request.

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.

11.7     GC will not change its name without giving the Supplier fifteen (15) Working days' notice of what its new name will be.

11.8     When 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:

(a)        been sold by GC;

(b)        become an accession; or

(c)        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.

11.9     Notwithstanding 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:

(a)        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

(b)        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.

12.       non-compliant goods

12.1     GC may, at any time after Delivery of the Goods, elect to do one or all of the following at the Supplier's cost:

(a)        reject any defective Goods ("Non-Compliant Goods") by giving written notice to the Supplier;

(b)        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

(c)        require the Supplier to refund to GC the full cost of the Goods.

12.2     If 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 such Goods.

12.3     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 the Supplier.

13.       GENERAL OBLIGATIONS

13.1     In providing the Goods, the Supplier shall:

(a)        maintain and comply with all necessary certificates, licences and consents to supply the Goods;

(b)        comply with all applicable laws and industry codes of practice;

(c)        act with reasonable care, skill and diligence;

(d)        without limiting any express obligation under these Conditions of Purchase, comply with all reasonable timeframes, directions and other requirements of GC;

(e)        not damage or adversely affect GC's reputation or business operations; and

(f)         promptly respond to any reasonable requests for information made by GC in relation to the Goods.

14.       WarrantIES

14.1     Without derogating from any warranties that the Supplier provides for its Goods, the Supplier shall ensure that any Goods it supplies to GC:

(a)        are fit for their intended purpose and free from defects;

(b)        are manufactured at all times by appropriately trained, qualified and experienced individuals;

(c)        comply with these Conditions of Purchase; and

(d)        comply with any relevant statute, regulation, bylaw, industry standards and code of practice.

15.       Liability

15.1     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.

16.       INTELLECTUAL PROPERTY

16.1     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.

17.       SUPPLY

17.1     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.

18.       SET OFF

18.1     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:

(a)        engaging another Supplier (under clauses 9.3(b) and 12.2) to supply the Goods;

(b)        any act or omission of the Supplier;

(c)        any breach of the Contract; and

(d)        any Non-Compliant Goods; and

(e)        any breach by the Supplier of any other legislation or regulation applicable to the supply of the Goods.

19.       Disruption

19.1     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.

19.2     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.

20.       Termination

20.1     GC may terminate the Contract if the Supplier:

(a)        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 breach;

(b)        is subject to an Insolvency event;

(c)        the Supplier assigns or transfers any of its rights or obligations under the Contract in breach of clause 21.1 or

(d)        if an event set out in clause 26.1 occurs.

20.2     Termination of these Conditions of Purchase shall not affect any rights or remedies each party may have accrued before the date of termination.

21.       ASSIGNMENT AND Sub-Contracting

21.1     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.

22.       DISPUTES

22.1     The parties will meet and discuss in good faith any disputes between them arising out of the Contract.

22.2     If 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:

(a)        the mediator will be deemed to be not acting as an expert or an arbitrator;

(b)        the mediator will determine the procedure and timetable for the mediation.

22.3     The cost of the mediation will be shared equally between the parties to the dispute.

22.4     If 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.

22.5     Pending 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.

22.6     Nothing 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.

23.       CONFIDENTIALITY

23.1     Each party agrees that it will not without the prior written consent of the other use Confidential Information or disclose Confidential Information to any person other than those of its officers, employees and advisers essential to the implementation of the provisions contained in it or as required by law.

23.2     Each 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 clause.

23.3     If a party is required by law to disclose any Confidential Information it will immediately, and prior to such disclosure, advise the other party.

23.4     The obligations under this clause shall survive termination or cancellation of this agreement.

23.5     Except 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 parties agree.

24.       Notices

24.1     Each 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.

24.2     A communication under these Conditions of Purchase will only be effective:

(a)        in the case of personal delivery, when delivered;

(b)        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

(c)        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,

provided that 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 day.

25.       Waiver

25.1     All 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.

26.       Force majeure

26.1     No party will be liable for failure to perform its obligations if the failure results from force majeure, act of God (including earthquake, tsunami, flood and fire), explosion, industrial dispute, act of government such as change in legislation, regulation or order made under legislative authority or anything beyond the party’s control.

27.       No Partnership/Agency

27.1     Nothing 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.

28.       Law and Jurisdiction

28.1     The 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.

29.       Severance

29.1     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.

30.       Counterparts

30.1     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.

31.       united nations convention on contracts

31.1     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.

 

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