Purchase Order Terms and Conditions

MOFFAT LIMITED (Moffat)

Registered New Zealand Company Number 647673

Moffat and the Supplier agree to be bound by these terms and conditions of purchase (Terms) in all circumstances where Moffat agrees to purchase goods (Goods) or services (Services) from the Supplier and the Supplier agrees to supply those Goods or Services to Moffat.

1. Undertaking as to title

The Supplier undertakes that at the time of the passing of the title in the Goods:

2. Mode of order

Moffat shall not be liable to accept delivery of, or pay for any Goods supplied or Services rendered in accordance with clauses 7, 12 and 13, unless ordered by Moffat on its purchase order form (Purchase Order). 

3. Written acknowledgement of Purchase Order

a) The Supplier must acknowledge that it:
i. received the completed Purchase Order; and
ii. is aware of the expected delivery date, the delivery location, the quantity and Price of the Goods or Services to be supplied.
 
b) The delivery of the Goods and/or the provision of the Services by the Supplier is confirmation of the acknowledgement set out in clause 3a). 

4. Creation of Agreement

a) Acceptance of the initial Purchase Order (and subsequent Purchase Orders), together with these Terms, will create an agreement between the Supplier and Moffat (Agreement).

b) The Supplier acknowledges that these Terms are referred to on all Purchase Orders, are available upon request, are available on Moffat's website (www.moffat.com.auco.nz) and that they will form the basis of this Agreement. In the event of any inconsistency between these Terms and any terms and conditions sought to be relied upon by the Supplier, whether previously entered into by Moffat or otherwise, these Terms shall prevail.
 
5. Purchase Order number

The Purchase Order number and part number in respect of all Goods must be stated on all delivery advice documents, packing slips, invoices and any correspondence relating to such order. 

6. Price

a) Moffat agrees to pay the Supplier the Price specified in the Purchase Order.
 
b) Unless the Purchase Order provides otherwise, the Price is inclusive of:
i. all charges for packaging, packing and delivery of the Goods in accordance with this Agreement;
ii. the cost of the Services (if any) to be provided with the Goods and any items used or supplied in conjunction with the Services; 
iii. GST (unless this Agreement expressly states that the Price excludes GST); and
iv. all other taxes.
 
c) Where the Supplier makes a taxable supply (as that term is defined in the Goods and Services Tax Act 1985 (“GST Act”)), payment by Moffat will be subject to receipt from the Supplier of a valid tax invoice in accordance with the GST Act.  The tax invoice must quote the Purchase Order number and be sent to the address specified on the Purchase Order.
 
d) Subject to clauses 20c and d, the Supplier may not increase the Price without Moffat’s prior written consent.  Moffat has the right to refuse to give such consent.  

7. Invoicing and payment

a) The Supplier must invoice Moffat upon delivery of the Goods or, if later, upon completion of the Services.
 
b) After submitting an invoice under clause 7a), if requested by Moffat, the Supplier must provide Moffat with all relevant records to enable it to calculate and/or verify the amount of the invoice.
 
c) Subject to Moffat accepting delivery of the Goods and/or Services under clauses 12 and 13, Moffat will pay all invoices rendered to it by the Supplier under clause 7a) within 60 days of the end of the month in which that invoice was received by Moffat except where Moffat disputes the invoice, in which case:
i. Moffat will pay the undisputed part of the relevant invoice (if any) to the Supplier;
ii. retain and dispute the balance of the invoice; and
iii. if the resolution of the dispute determines that Moffat is to pay an amount to the Supplier, Moffat will pay that amount to the Supplier upon resolution of that dispute, otherwise Moffat will keep the disputed amount.
 
d) Moffat may reduce any payment due to the Supplier under these Terms by any amount for which the Supplier is liable to Moffat, including costs, charges, damages and expenses.  This does not limit Moffat's right to recover those amounts in other ways.

e) Unless otherwise specified, any money payable under this Agreement is to be paid in New Zealand dollars.
 
f) No interest will be payable by Moffat in respect of any invoice rendered to it by the Supplier under clause 7a) which remains due and unpaid.
 
g) If this Agreement involves the supply of Goods on a cost plus basis, Moffat has the right to conduct an audit of the basis of the Supplier's charges using the Supplier's records.  This audit right continues for 12 months after Moffat pays the relevant invoice.
 
h) If this Agreement involves the supply of Services on a cost plus or hourly basis, upon request by Moffat, the Supplier must provide Moffat with relevant time sheets or records with the invoice to which that time spent relates and Moffat has the right to conduct an audit of the basis of the Supplier's charges using the Supplier's records.  This audit right continues for 12 months after Moffat pays the relevant invoice.

8. Delivery and Delivery Date

a) Subject to clause 16, delivery takes place when the Goods and/or Services are delivered to Moffat on the date set out in the Purchase Order (Delivery Date).

b) The Delivery Date is of the essence of this Agreement. The Supplier acknowledges that Moffat may suffer loss if delivery of the Goods and/or Services takes place after the Delivery Date.

9. Failure to deliver correct quantity of Goods or by Delivery Date

If the Supplier delivers to Moffat a quantity of Goods less than contracted, or fails to deliver the Goods by the Delivery Date, Moffat may, without prejudice to its rights in respect of the breach of this Agreement:

a) reject the Goods, refuse to pay the Supplier's invoice issued under clause 7a) and terminate this Agreement. If this occurs, without prejudice to Moffat's other remedies, the Supplier must, at its own cost, promptly collect any Goods which it has already delivered to Moffat;
 
b) cancel the remainder of the delivery, partially accept the Goods which have already been delivered and correspond to the Purchase Order and recover an amount from the Supplier which will cover the loss or damage suffered by Moffat for the Supplier's breach of failing to deliver the remainder of the Goods; or
 
c) vary the details of the remainder of the delivery by appointing an alternative date and/or place of delivery of the undelivered Goods without incurring any liability in relation to the variation and, if applicable, recover an amount from the Supplier which will cover the loss or damage suffered by Moffat for the Supplier's breach of failing to deliver the remainder of the Goods as per the original Purchase Order

10. Stipulations for supply of Goods

All Goods supplied pursuant to the Purchase Order must:
 
a) Be in accordance with Moffat's specification and drawings (where applicable). Moffat will return to the Supplier any Goods received by it which do not comply with its specifications and drawings and any costs incurred in doing so will be payable by the Supplier;
 
b) Be accompanied by a packing slip; 
 
c) Be delivered to Moffat with all freight charges paid unless otherwise specified in the Purchase Order. Subject to clause 16, Moffat accepts no responsibility for damage, loss or delay in transit;
 
d) Comply with any relevant Australian or New Zealand standards and any other standards specified in this Agreement;
 
e) Be fit for the purpose for which Goods of the same kind are commonly supplied and for any other purpose which Moffat made known to the Supplier prior to Moffat submitting the Purchase Order to the Supplier; and
 
f) Be new unless otherwise specified in the Purchase Order.

11. Stipulations for supply of Services
 

In providing the Services pursuant to the Purchase Order, the Supplier must ensure that:
 
a) The Services match the description of the Services in the Purchase Order;
 
b) The Services correspond in nature and quality with any demonstration of the Services provided by the Supplier prior to Moffat submitting the Purchase Order to the Supplier;
 
c) The Services are provided by appropriately qualified and trained personnel. Where specific persons are identified in the Purchase Order to provide the Services, the Services must be provided by those persons unless otherwise agreed in writing by Moffat;
 
d) The Services are provided with due care and skill in accordance with agreed services levels and reasonable standards for the provision of services of that kind;
 
e) The Services are provided using the Supplier's best efforts, and ensure that the Supplier's employees, agents, contractors and sub-contractors use their best efforts, not to interfere with any of Moffat’s activities, or the activities of any other person, on Moffat’s premises;
 
f) The Services comply with, and ensure that the Supplier's employees, agents, contractors and sub-contractors comply with:
i. all applicable laws regulations and industrial employment awards and agreements;
ii. all security, health, environment and occupational health and safety guidelines, rules and procedures and information technology protocols provided to the Supplier by Moffat; and
iii. all directions and orders given by Moffat’s representatives; and
 
g) Moffat’s, and Moffat's customers', premises are left secure, clean, orderly and fit for immediate use on completion of the Services.

12. Inspection and acceptance of Goods

a) All Goods delivered in accordance with the Purchase Order shall not be deemed to be accepted by Moffat until Moffat has had a reasonable opportunity to inspect and approve the Goods after delivery and provides the Supplier with a written acknowledgement of its acceptance. Moffat may reject Goods which do not match those described in the Purchase Order or which otherwise do not satisfy the criteria set out in this Agreement after such inspection.
 
b) Payment for the Goods or signing delivery receipts before inspection do not constitute acceptance of the Goods
 
c) If upon inspection Moffat determines that any of the Goods do not conform with the Purchase Order then they will be considered to be defective Goods, in which case Moffat may:
i. reject the defective Goods and return them to the Supplier at the Supplier's risk and cost;  or
ii. repair the defective Goods and be indemnified and held harmless by the Supplier for all costs and expenses incurred in undertaking that repair.
 
d) Subject to clause 21b), transfer of title and acceptance of the Goods by Moffat does not constitute acknowledgement by Moffat as to the condition of each of the Goods or that each of the Goods conforms with the criteria set out in this Agreement.  Moffat may at any time reject and return to the Supplier any of the Goods which do not conform with this Agreement and are determined to be defective Goods by Moffat at a later stage.
 
e) Upon request, the Supplier agrees to refund to Moffat any payments made by Moffat in respect of defective Goods which Moffat rejects.
 
f) This clause applies notwithstanding that an acknowledgment of receipt of the Goods may have been executed by or on behalf of Moffat.
 
13. Inspection and acceptance of Services
 

a) The Supplier must provide to Moffat, at Moffat’s request, progress reports on the provision of the Services.  A progress report must be sufficiently detailed to allow Moffat to ascertain whether the Services conform with this Agreement.
 
b) At any time during the provision of the Services, Moffat may inspect or witness the Services or their results.
 
c) If upon inspection Moffat determines that any of the Services or their results are defective Services, Moffat may:
i. reject those parts of the Services which are defective Services by notifying the Supplier that Moffat is rejecting them; and
ii. require the Supplier to provide the defective Services again or reimburse Moffat for any loss or damage incurred in connection with the rejected defective Services,
or
iii. make good any of the defective Services; and
iv. require the Supplier to reimburse Moffat for any expenses Moffat may incur in making good any such defective Services.
 
d) Moffat has the right to reject any Services which do not conform with this Agreement even if Moffat has already paid for those defective Services.
 
e) The Supplier agrees to refund to Moffat, when requested, any payments made by Moffat in respect of defective Services which Moffat has rejected in accordance with clause 13d).
 
f) In accordance with clause 13c)iv, the Supplier agrees to reimburse Moffat for any expenses that Moffat may incur in making good defective Services. 
 
g) The remedies provided in this clause 13 do not exclude any other remedies provided by law.
 
14. Passing of risk and acceptance for delivery

The Goods remain at the Supplier's risk until they are delivered to Moffat in accordance with clause 8 and accepted by Moffat in accordance with clause 12.

15. Time of transfer of title

Subject to inspecting and accepting the Goods in accordance with clause 12, property in or title to the Goods shall pass to Moffat on delivery.  Where Moffat pays any part of the price before delivery then title passes on payment.
 
16. Delivery, damage and losses in transit
 

a) Unless otherwise specified, the Supplier is responsible for ensuring that the Goods are properly packed and delivered to the place specified in the Purchase Order or otherwise specified by Moffat.
 
b) The Supplier must include a packing list in each package of Goods delivered to Moffat.
 
c) The Supplier must comply with any packaging directions or guidelines given to it by Moffat from time to time.
 
d) If the Goods are damaged or lost in transit, the Supplier must repair or replace those Goods free of charge.
 
e) If the Goods are damaged in accordance with clause 16d), delivery of those Goods in accordance with clause 8 shall not be deemed to have taken place until the replacement or repaired Goods have been delivered by the Supplier to Moffat or Moffat's agent. Moffat reserves the right to hold the damaged Goods at the Supplier's risk until the replacement or repaired Goods have been delivered by the Supplier or to return them to the Supplier at the risk and expense of the Supplier. 

17. Intellectual property
 

a) The Supplier acknowledges that it may be provided with Moffat's intellectual property which may include, but is not limited to, designs, drawings, specifications or trademarks (whether registered or not) (Moffat's IP).
 
b) The Supplier hereby undertakes not to disclose or make use of, in any manner, either for its own benefit or for the benefit of others, any of Moffat's IP, which has originated from Moffat without Moffat's prior written consent.
 
18. Confidential Information
 

a) Confidential Information means confidential information, trade secrets, know-how, scientific, technical, product, market or pricing information relating to the Goods or Services or either party's business.
 
b) Each party undertakes that it will not, either during the term of this Agreement or at any time thereafter (except in the proper course of performing its duties under this Agreement or as required by law or by the other party) disclose to any person any Confidential Information of or relating to the other party which it possesses or has become aware as a result of this Agreement or the negotiations preceding this Agreement including, but not limited to, the terms of this Agreement
 
c) Nothing in this Agreement prohibits disclosure of Confidential Information which:
i. is in the public domain;
ii. becomes part of the public domain after it is disclosed to the other party otherwise than as a result of the wrongful act of that other party;
iii. is received from a third party provided that it was not acquired directly or indirectly by that third party from a party to this Agreement; or
iv. is required to be disclosed by law or any government or governmental body, authority or agency having authority over the disclosing party.
 
d) The obligations under this clause 18 survive termination of this Agreement.
 
e) Before disclosing any Confidential Information for the reasons set out in clause 18c), the disclosing party must provide the other party with:
i. sufficient notice to enable it to seek a protective order or other remedy; and
ii. all assistance and co-operation which that party considers necessary to prevent the disclosure of its Confidential Information.
 
19. Force Majeure

a) A Force Majeure Event is as an act of God, flood, earthquake, storm, cyclone, hurricane, lightening, fire, explosion, epidemic, war, terrorism embargo, riot or civil disturbance, strike or other labour dispute, sabotage, expropriation, confiscation or requisitioning of facilities, orders or temporary or permanent injunctions of any duly constituted court and any other matter or event which is beyond the control of the relevant party and for which the relevant party could not take reasonable measures to prevent or which would mitigate its effect.
 
b) Where either Moffat or the Supplier is unable, wholly or in part, by reason of a Force Majeure Event, to carry out any obligation under this Agreement and that party:
i. gives the other party immediate written notice of the nature and expected duration of, and the obligations affected by, the Force Majeure Event; and
ii. uses all reasonable endeavours to:  A. mitigate the effects of the Force Majeure Event on that party's obligations under this Agreement; and B. perform that party's obligations under this Agreement despite the Force Majeure Event, that obligation is suspended so far as it is affected by the Force Majeure Event throughout the duration of that Force Majeure Event.
 
c) If by reason of a Force Majeure Event, the delay or non-performance of either Moffat's or the Supplier's obligations will continue for more than 20 consecutive days, or for an aggregate of 20 days in any 12 month period, whichever of Moffat or the Supplier who is not relying on the Force Majeure Event may terminate this Agreement or any Purchase Order by written notice to the other party.
 
d) Termination of this Agreement under this clause 19 will automatically terminate every Purchase Order in existence at the time of cancellation, unless otherwise specified by the cancelling party in the relevant notice.
 
20. Termination, variation and suspension of this Agreement

a) Either party may immediately terminate this Agreement by notice in writing to the other party if:
i. the other party breaches this Agreement by not carrying out any of its material obligations under this Agreement and fails to rectify that breach / those breaches following reasonable notice by the terminating party; or
ii. the other party becomes insolvent.
 
b) Moffat may vary or terminate this Agreement, any part of this Agreement or any Purchase Order at any time upon 7 days’ written notice to the Supplier.
 
c) When the Supplier receives a notice of variation from Moffat under clause 20b), the Supplier may:
i. vary this Agreement or any Purchase Order in accordance with Moffat’s notice, in which case it must send Moffat a written claim with an adjusted Price for this Agreement or the Purchase Order within 30 days of the effective date of the variation in accordance with clause 20e); or
ii. terminate this Agreement upon 7 days' written notice, in which case it must comply with the steps set out in clause 20d).
 
d) Where this Agreement or any Purchase Order has been terminated, the Supplier must:
i. stop work to the extent required by the notice;
ii. take such action as necessary or as Moffat directs, for the transfer, protection and preservation of Moffat’s property;
iii. do its best to minimise the cost of termination to Moffat; and
iv. where the termination results from a notice given under clause 20b), send Moffat a written claim with an adjusted Price for this Agreement or the Purchase Order within 30 days of the effective date of termination in accordance with clause 20e).

e) The Supplier's written claim must:
i. set out all costs incurred to date in relation to this Agreement;
ii. set out all costs and cost savings that result from the variation or termination of this Agreement;
iii. where this Agreement has been terminated, not specify an adjusted Price that is greater than the Price specified in this Agreement or the Purchase Order; and
iv. not specify an adjusted Price that includes any amount for anticipated profit, unperformed work or Consequential Loss or damage.
 
f) Moffat has the right to audit the adjusted Price specified in the Supplier's written claim and, upon request, the Supplier must provide Moffat with all documentation and materials relevant to determine whether it should accept the adjusted Price under this clause 20.
 
g) If:
i. Moffat is satisfied that the adjusted Price specified in the Supplier's written claim is equitable; and
ii. the termination or variation of this Agreement is not a result of any default or action on the Supplier's part, or on the part of the Supplier's employees, agents, contractors or sub-contractors (including, without limitation, any of the events specified in clause 20a), the adjusted Price will apply to this Agreement.  
 
h) Termination of this Agreement does not affect:
i. any rights of the parties which may have accrued before the date of termination; and
ii. the rights and obligations of the parties under clauses 17, 18 and 23 which survive termination of this Agreement
 
21. Warranties

i. the Goods will be free from any defect in design, performance, workmanship and makeup, and will conform with this Agreement (including, without limitation, clause 10) for 12 months from the date of delivery of the Goods  (Warranty Period);
ii. the Services and the results of the Services will conform with this Agreement (including, without limitation, clause 11), will be provided with due care and skill to a high standard and will be otherwise satisfactory; and
iii. it will collect, store and handle any personal information of Moffat's representatives in accordance with its privacy policy which is compliant with the Privacy Act 1993.
 
b) If, during the Warranty Period, Moffat determines that any of the Goods are defective Goods, at Moffat’s discretion:
i. it may return the defective Goods to the Supplier;
ii. it may make good the defective Goods and the Supplier must reimburse Moffat for any expenses Moffat incurs in making good any such defective Goods; or
iii. the Supplier must repair or, if Moffat otherwise decides, replace any such defective Goods that Moffat returns to the Supplier at the Supplier's cost
 
c) Any Goods that are repaired or replaced by the Supplier under this Agreement will be subject to the same warranty provisions as the original Goods, from the date of repair or replacement.
 
d) Any defective Services that are reprovided or made good by the Supplier under this Agreement will be subject to the same warranty provisions as the original Services, from the date of reprovision or making good.
 

22. Insurance

a) The Supplier must take out and maintain during the term of this Agreement a comprehensive professional indemnity, public and products liability policy to cover all amounts which the Supplier may become legally liable to pay as a result of the:
i. death of, or bodily injury (including disease or illness) to, any person;
ii. loss of, or damage to, property; and
iii. loss or damage incurred by Moffat or any third party due to the Supplier's breach of this Agreement or the Supplier's recklessness or negligence, happening anywhere in Australia New Zealand arising out of or in connection with this Agreement.
 
b) The limit of liability provided by the policy described in clause 22a) must be not less than $10 million for:
i. employer’s liability insurance;
ii. insurance for the Goods up to the time title in the Goods passes to Moffat under clause 15 for at least their replacement value; and
iii. other insurances required by law or reasonably required by Moffat.
 
c) At Moffat’s request, the Supplier must produce evidence that the Supplier is maintaining the insurances required by this clause 22.
 
d) Moffat has the right to take out and maintain any policy of insurance required by this clause 22 if the Supplier fails to do so.
 
e) The Supplier must reimburse Moffat for any expenses Moffat may incur in taking out and maintaining any policy of insurance under clause 22d).
 

23. Liability and indemnities

a) The Supplier acknowledges that if it or its employees, agents, contractors and sub-contractors enter Moffat’s premises, the Supplier does so at its own risk and must ensure that its employees, agents, contractors and sub-contractors are also aware that they enter Moffat’s premises at their own risk.
 
b) The Supplier will be liable for, and will indemnify Moffat and hold it harmless and keep it indemnified and held harmless from and against any liability and/or any loss or damage of any kind whatsoever arising directly or indirectly from:
i. any breach of: A. any warranty; B. any of the Terms; or C. this Agreement, by the Supplier;
ii. the illness, injury or death of any of the Supplier's employees, agents, contractors and/or subcontractors arising out of or in connection with this Agreement;
iii. any loss or damage arising out of, or in connection with, any personal injury, illness or death to any person or damage to any property or any other loss or damage of any kind whatsoever caused or contributed to by: 
A. the Goods and the provision of any Services by the Supplier; and/or
B. the entry onto, and the activities undertaken on and in, Moffat’s premises by the Supplier and/or its employees, agents, contractors and/or subcontractors;
iv. any negligence or willful act or omission by the Supplier and/or any of its employees, agents, contractors and/or sub-contractors in connection with this Agreement;
v. any claim made against Moffat by any of the Supplier's employees, agents, contractors and/or subcontractors in respect of any relevant legislation concerning any taxes or any applicable award, determination or agreement of a Court or tribunal;
vi. any penalty, fine, charge or other cost imposed for breach of an applicable law in connection with the provision of the Services by the Supplier;
vii. loss or damage to any plant, equipment, tools, appliances or other property owned, rented or hired by the Supplier and used in relation to this Agreement; and
viii. any claim that the Goods, anything the Supplier does in supplying Moffat with the Goods or providing Moffat with any Services, Moffat’s use of the Goods or the results of the Services infringes or allegedly infringes the intellectual property rights of any person, except to the extent that any liability, loss or damage is solely and directly caused by Moffat’s gross negligence or that of Moffat’s employees, agents, contractors and sub-contractors (other than the Supplier).
 
c) Each indemnity in this Agreement is a continuing obligation separate and independent from the Supplier's other obligations and survives termination of this Agreement.
 
d) It is not necessary for Moffat to incur any expense or make any payment before enforcing a right of indemnity conferred by this Agreement.

e) Neither party will be liable to the other party in any circumstances for any Consequential Loss which means any loss, damage or costs incurred by a party or any other person that is indirect or consequential, as well as loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity.

24. Dispute Resolution

a) The parties must take the steps set out in this clause 24 to resolve any dispute or claim between them arising out of or relating to this Agreement, including, but not limited to disputed amounts in an invoice.

 
b) The parties must attempt to resolve any dispute or claim through negotiations conducted in good faith
 
c) Any dispute or claim not resolved under clause 24b), must be referred by a party to mediation.  If a mediator cannot be agreed upon by the parties within 7 days of notice of reference to mediation being given by a party then then a mediator shall be appointed by the then Chairperson of LEADR New Zealand Incorporated or the Chairperson’s nominee.  The mediator shall conduct the mediation in accordance with guidelines agreed between the parties, or if not agreed within 14 days of the appointment of the mediator, in accordance with the guidelines set by the mediator.
 
d) Each party must bear its own costs in connection with the mediation, and must share the costs of the mediator and mediation process equally.
 
e) This clause will continue to apply to the parties even after expiration or termination of this Agreement.

25. Governing law

This Agreement and each Purchase Order are governed by and construed in accordance with the law of New Zealand and the parties submit to the nonexclusive jurisdiction of the New Zealand Courts.

26. Variations

Subject to clause 20, no party may vary this Agreement except in writing signed on behalf of both Moffat and the Supplier. 

27. Entire agreement

This Agreement constitutes the entire agreement of the parties about this subject matter and any previous agreements, understandings and negotiations on this subject matter cease to have any effect.