BASE POWER ORDER GENERAL TERMS AND CONDITIONS
These Terms (“Terms”) are intended to govern all Purchase Orders placed by Base Power Limited from time to time. Unless Base Power specifically states otherwise, each Purchase Order placed by Base Power will be considered an offer (or counter-offer) to purchase the relevant Goods or Services on these Terms. By acting on the Purchase Order, the Supplier is taken to accept these Terms to the exclusion of all others (unless other terms are specifically specified by Base Power as being supplemental to these Terms). Unless Base Power specifically states otherwise, the placement of an order by Base Power does not indicate or constitute acceptance of any other terms and conditions notified by the Supplier.
- These Terms will take effect as soon as Base Power has issued a Purchase Order and the Supplier has accepted that Purchase Order (by words or conduct).
- These Terms apply to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, such as on the Supplier’s purchase order or invoice unless Base Power has agreed to this in writing.
- These Terms are in addition to any separate agreement or contract in place between Base Power and the Supplier unless expressly stated to prevail (excluding any Supplier issued terms relating to the Purchase Order). Where the Supplier or Base Power have overlapping requirements imposed on them under these Terms or under any separate agreement or contract, to the maximum extent possible, those requirements will be applied concurrently and cumulatively with the intention that the relevant party is to fulfil both requirements to the extent they are compatible with one another.
- In these Terms, the following words have the following meanings:
“Base Power” means Base Power Limited and its successors and permitted assigns;
“Business Day” means a day (other than a Saturday or a Sunday) upon which registered banks are open for business in New Zealand;
“Charges” means the charges that Base Power is required to pay for the Goods or Services under these Terms, as set out in the Purchase Order;
“Drawings” means any drawings attached to the Purchase Order or supplied by Base Power to the Supplier in connection with the Purchase Order;
“Force Majeure” means an act of God, act or omission of government, terrorism, fire, earthquake, flood, explosion, accident at sea, unavailability of or unusual price rise for raw materials and except where restricted to employees of the Supplier, industrial condition or any other event beyond the control of the party whose performance is affected by that event;
“Free Issue Equipment” means any plant, materials or other equipment supplied by Base Power to the Supplier and specified in the Purchase Order or tender documentation (as the case may be) which are necessary to perform to Services;
“Goods” means the goods, equipment or material and any other output of the Services (in any form), supplied or to be supplied by the Supplier as described in the attached Purchase Order and any other items or materials necessary for, incidental to, or customarily provided as part of, those goods, equipment, material or outputs;
“Intellectual Property Rights” means all rights in and to all technology, techniques (both patented and non-patented), know-how, confidential information, patents, copyright, designs, trade names, inventions, discoveries and all other rights as defined by Article 2 of the Convention of July 1967 establishing the World Intellectual Property Organisation, including all applications for any of such rights as may exist anywhere in the world.
“Purchase Order” means a purchase order or tender documentation (as the case requires) issued by Base Power to the Supplier incorporating these Terms, under which Base Power engages the Supplier to supply the Goods;
“Services” means the services supplied or to be supplied by the Supplier as described in the Purchase Order, any tender terms to which these Terms apply and any other services that are necessary for, or incidental to, or customarily provided as part of those services
- for electricity Services performed under these Terms, the standards applicable to the Services and which are available to view at https://wm.powerco.co.nz/cwm/;
- the industry standards relevant to the performance of the Services (being standards that are mandatory as a matter of law and/or generally accepted in the gas or electricity industries as defining or reflecting relevant aspects of Good Industry Practice.
“Supplier” means the supplier whose name is set out in a Purchase Order; and
“Warranty Period” means 24 months or any alternative period specified in the Purchase Order or tender documentation (as the case may be), and shall commence after delivery of the Goods or payment of the Charges for the Services in accordance with these Terms.
2 SUPPLY OF GOODS AND SERVICES
- The Supplier must provide Base Power with the Goods and Services in accordance with these Terms and each Purchase Order.
- The Supplier must supply the Goods and Services in accordance with Base Power’s reasonable directions and must ensure that the Goods and Services meet Base Power’s reasonable requirements.
- The Supplier must supply the Goods and Services in a manner that complies with all applicable laws and regulations. The Supplier will ensure that its acts and/or omissions do not cause Base Power to breach any laws or regulations.
3 FREE ISSUE EQUIPMENT
- The Supplier must confirm receipt of any Free Issue Equipment in writing.
- The Supplier must inspect any Free Issue Equipment at the time of supply and again immediately prior to installation or use. The Supplier must promptly inform Base Power of any quality issues that are reasonably discovered on such inspection.
- The Supplier shall ensure the safe storage of Free Issue Equipment. It must be stored and labelled so it is easily identifiable as belonging to Base Power.
- The Supplier may not use Free Issue Equipment for any other Services other than those specified in the Purchase Order without prior written consent of Base Power.
- Title in Free Issue Equipment shall remain with Base Power. Risk shall pass to the Supplier upon receipt of the Free Issue Equipment by the Supplier.
4 DELIVERY, RISK AND TITLE IN GOODS
- The Supplier shall use all reasonable efforts to deliver the Goods in any timeframe advised by the Supplier to Base Power and accepted by Base Power or, if no timeframes are specified, promptly.
- The Supplier must deliver the Goods to the location for delivery of the Goods set out in the relevant Purchase Order or otherwise advised by Base Power.
- Risk and title in the Goods will pass to Base Power on delivery or confirmation of acceptance of the Goods in accordance with these Terms, whichever is the later.
- If the Goods are in the possession of Base Power but title and risk has not passed to Base Power under clause 4.3, Base Power shall take all reasonable measures to protect the Goods from loss or damage during Acceptance Tests.
- Without limitation to any of Base Power’s rights and remedies under this Contract, the Supplier will promptly notify Base Power if it has reason to suspect that there could be a delay in the delivery of the Goods. In such notice, the Supplier shall specify the reason for the delay and the estimated date for delivery.
- Where Base Power has specified liquidated damages that shall apply for a delay to a delivery date in a Purchase Order or tender to which these Terms apply, Base Power shall be permitted to set off the liquidated damages amount from any invoice submitted by the Supplier.
- Delivery to the relevant location for delivery of the Goods shall include the Supplier paying for all transportation costs, customs handling and all other relevant costs as required for the site delivery. Notwithstanding anything to the contrary contained in these Terms the Goods shall be delivered in accordance with the requirments of Incoterm DDP.
- For each part of the Goods delivered by the Supplier, Base Power may conduct such acceptance tests as Base Power, at its cost, considers appropriate (“Acceptance Tests”). Base Power will be deemed to have accepted the Goods if:
- Base Power gives the Supplier written notice of Base Power’s acceptance; or
- Base Power does not give any notice of rejection under clause 2 within 30 days of receiving the relevant Goods.
- If Base Power considers the Goods have not passed all of the Acceptance Tests, Base Power may either (a) give notice to the Supplier outlining the failures or (b) give a notice of rejection stating the reasons for the rejection. In the case of (a), the Supplier will correct each failure (at its sole cost unless otherwise agreed with Base Power in writing) and, within 10 days of that notice or within a timeframe agreed with Base Power resubmit the Goods to Base Power for further Acceptance Tests in accordance with this clause 5.
- If Base Power gives a notice of rejection of the Goods under clause 5.2:
- at Base Power’s election: (i) the Supplier shall remove the Goods from Base Power’s possession within an reasonable timeframe agreed with Base Power, at the Supplier’s sole cost; or (ii) agree that Base Power shall return the Goods to the Supplier in which case the Supplier shall pay Base Power, on demand, all costs (including but not limited to any reasonable logistics, transportation, customs, shipping and storage costs) incurred by Base Power in returning the rejected Goods to the Supplier; and
- the Supplier shall repay to Base Power all and any monies paid to the Supplier by Base Power for the Goods.
- If Base Power exercises its right under clause 5.3 or 5.4 to reject Goods and no other Goods are awaiting delivery in connection with the Purchase Order then Base Power’s contract for supply under these Terms is deemed to have been terminated.
6 CHARGES AND PAYMENT
- Base Power will pay the Supplier the Charges in accordance with the Purchase Order (including as to the timing of such payments) and this clause.
- The Charges are deemed to include all expenses, disbursements, taxes, levies, imposts and duties, except for goods and services tax (“GST”), if any.
- The Supplier will not be entitled to invoice any part of the Charges until it has delivered the Goods or performed the Services in accordance with these Terms and the Goods have passed acceptance (as applicable) or have met the Standards (as applicable).
- A valid tax invoice (as defined in the Goods and Services Tax Act 1985) for Base Power requires the Purchase Order number to be quoted for payment to be made.
- Payment will be in full unless the Purchase Order or tender documentation (as the case may be) specifically specifies milestone or staged payment of Charges.
- Base Power will pay the invoice on or before the 20th of the following month.
- Base Power may deduct or withhold any amount (whether by way of set off, counterclaim or otherwise) from any amount owing to the Supplier.
7 LIABILITY AND INDEMNITY
- Subject to clause 7.2, the Supplier indemnifies Base Power against any loss, cost , liability, damage or expense (“Loss”) that Base Power may suffer as a result of, or incur in response to, the Supplier’s act or omission, negligence or breach of these Terms.
- To the extent permitted by law, the Supplier’s liability to Base Power for Loss under the law of contract, in tort (including negligence), equity or otherwise will be limited in aggregate to two times the amount of the Charges specified in the Purchase Order (whether or not those Charges have actually become payable).
- The Supplier shall not be liable for any economic Loss (including loss of profit, loss of use, loss of revenue, loss of production, loss of anticipated savings, business interruption, increase in operating costs, business opportunity or goodwill), indirect or consequential Loss, or the Loss of any third party. However, the limitations in this clause shall not limit the Supplier’s liability to pay liquidated damages where applicable under the relevant Purchase Order or tender to which these Terms apply.
- The Supplier warrants and undertakes that:
- from the time that title is intended to pass under these Terms, the Goods will be free from any lien, charge, security interest, encumbrance or defect in title;
- on delivery, and for the duration of the Warranty Period, the Goods and Services will be free from defects in design, materials and workmanship. The Supplier will provide Base Power with separate written warranty documentation specifying the forgoing if requested by Base Power;
- on delivery, and for the duration of the Warranty Period, the Goods will be fit for the intended purposes for which such Goods are commonly acquired and for the purpose for which Base Power is acquiring them, as that purpose is communicated by Base Power either expressly or by implication or for such purposes as the Supplier represents;
- the supply of the Goods to Base Power and Base Power’s use of the Goods will not infringe the Intellectual Property Rights of any person;
- it holds appropriate insurance policies at a sufficient level of cover to insure against the its liability to Base Power for the supply of Goods and Services under these Terms; and
- the Goods will be delivered and the Services will be performed in a diligent and workmanlike manner, with due skill, care and efficiency, by competent and qualified personnel.
Without limiting Base Power’s other rights and remedies, where Base Power has accepted the Goods or Services and Base Power finds that any Goods or Services do not comply with these Terms before the expiry of the Warranty Period, Base Power may:
- request the Supplier to remedy the non-compliance at the Supplier’s own cost and the Supplier will comply with that request; or
- have the non-compliance remedied by its own personnel or contractors, in which case the Supplier must reimburse Base Power on demand for all costs and expenses that Base Power incurs in doing so; or
- in the case of Goods only (i) request that the Supplier removes the Goods from Base Power’s possession within an reasonable timeframe agreed with Base Power, at the Supplier’s sole cost or agree that Base Power shall return to the Goods to the Supplier in which case the Supplier shall pay Base Power, on demand, all costs (including but not limited to any reasonable logistics, transportation, customs, shipping and storage costs) incurred by Base Power in returning the defective Goods to the Supplier and (ii) the Supplier shall repay to Base Power all and any monies paid to the Supplier by Base Power for the defective Goods.
- In the case of Goods only, the Supplier shall not be liable for:
- fair wear and tear;
- failure by Base Power or any other person to comply with the Supplier’s instructions or documentation in respect of commissioning, operation, storage or maintenance of the Goods; or
- repairs or modifications to the Goods which have been made without the Supplier’s approval.
10 FORCE MAJEURE
- If the Supplier is or will be prevented from or delayed in performing any of its obligations by Force Majeure, it shall notify Base Power immediately.
- The Supplier shall be excused from and shall not be liable for non-performance to the extent of that prevention or delay and the time for performance shall be extended accordingly.
- If the event continues for a period of 84 days, Base Power may give notice of termination to the Supplier which shall take effect 28 days after the giving of the notice.
- Upon such termination, the rights of the parties will be as if the Contract had been frustrated at law.
- For supply of Services, the Supplier will not be entitled to claim Force Majeure relief to the extent the delay is caused by a storm on Base Power’s network or the Site (if the Site is not on Base Power’s network).
11 TERM AND TERMINATION
- The supply contract under these Terms will commence on the date Base Power issues the Purchase Order and will end on the later of expiry of the Warranty Period unless terminated earlier in accordance with these Terms or at law.
- In the case of Services only, if the Supplier holds Approved Contractor status with Base Power and that status is suspended or terminated, Base Power may suspend or terminate the supply contract under these Terms with immediate effect.
- No amendment to these Terms will be effective unless Base Power issues a notice to the Supplier in writing. A waiver of any provision of these Terms will only be effective where given in writing by Base Power, and then only to the extent that the waiver is expressly stated.
- These Terms will be governed by and construed in accordance with New Zealand law, and each party submits to the non-exclusive jurisdiction of the courts of New Zealand. If the Supplier is an overseas entity, either party may refer a dispute to be resolved by arbitration. If referred, the arbitration will be held in Wellington, New Zealand, before one arbitrator, conducted in English, and the Arbitration Act 1996 will apply.
- The guarantees implied by the Consumer Guarantees Act 1993 (as amended or supplemented from time to time) are expressly excluded from these Terms as Base Power is acquiring the Goods or Services for the purpose of a business.
- To the fullest extent permitted by law, the parties agree that the Sale of Goods (United Nations Convention) Act 1994 shall not apply to this Contract.