1.1 ‘Agreement’ means the agreement to purchase and supply goods, services and/or works made between the Supplier and Orion New Zealand Limited (Orion) on these terms together with each Purchase
1.2 ‘Purchase Order’ means a document which evidences an order from Orion to the Supplier for the supply of goods, services and/or works.
1.3 ‘Supplier’ means the person or organisation that is supplying the goods, services and/or works to Orion.
2.1 These terms apply to all orders to purchase goods, services or works made by Orion, unless Orion agrees otherwise in writing. The Supplier, by supplying the goods, services or works, is deemed to have accepted these terms to the exclusion of all other terms unless Orion agrees otherwise in writing.
2.2 Orion may vary these terms from time to time. Any varied terms will be posted on Orion’s website at oriongroup.co.nz and will apply to all goods, services or works supplied by the Supplier to Orion under any Purchase Order submitted after that variation is made. The terms may not otherwise be varied without the written consent of Orion.
2.3 No rule of construction applies to the interpretation of these terms or any Purchase Order to the advantage or disadvantage of any party on the basis that a party prepared these terms or any part of them.
3.1 The Supplier warrants that the goods, services or works supplied:
a) are of a good quality, having regard to good industry practices for the industry in which the Supplier operates;
b) comply with any description, sample or representation that has been provided to Orion;
c) comply with any specification that has been provided to the Supplier by Orion;
d) are fit for their normal purpose or any other particular purpose Orion has made known to the Supplier;
e) are not hazardous and do not contain hazardous items or materials (including asbestos) unless this has been notified to and agreed with Orion in writing;
f) will be supplied within any time period agreed by the parties, or in the event no such period is agreed then within a reasonable time of the order being placed; and
g) will comply with all applicable laws, standards and Orion policies.
3.2 In providing goods, services or works, the Supplier warrants that it will:
a) exercise the degree of skill, care and diligence of a competent and qualified professional;
b) comply with all applicable laws, standards and Orion policies; and
c) comply with the reasonable directions of Orion.
4 Health and safety
The Supplier must:
a) consult, cooperate and coordinate with Orion regarding the parties’ overlapping obligations under, and what is required from the Supplier to assist Orion to comply with the Health and Safety at Work Act 2015 and all associated regulations and mandatory codes of practice (HSW Act) as it relates to, or affects, the Agreement;
b) comply, and ensure that its personnel comply, with their obligations under the HSW Act as they relate to, or affect, the Agreement; and
c) report any notifiable injury, illness, incident or event, or any notice issued under the HSW Act that applies to the Supplier or Orion, or relates to or affects the Agreement.
5 Inspection/testing of goods
The Supplier must comply with any inspection or testing process set out in the Purchase Order (if applicable).
6 Payment terms
6.1 Subject to the remainder of this Agreement, Orion will pay the price stated in the Purchase Order for the relevant goods, services or works. Payment for any goods, services or works supplied by the Supplier to Orion will be made by Orion to the Supplier by the twentieth (20th) day of the month following the later of:
a) the Supplier completing the supply of the goods, services or works in the Purchase Order; and
b) receipt by Orion of an appropriate invoice for the goods, services or works from the Supplier (such invoice complying in all respects with the requirements of the Goods and Services Tax Act 1985, where appropriate).
6.2 Orion is not required to pay any part of an invoice that is genuinely and reasonably disputed, until such dispute is resolved.
6.3 Invoices are to be emailed in PDF format to [email protected] and must contain the correct Purchase Order number.
7 Ownership of goods
Unless specifically agreed in writing by the parties, ownership in any goods supplied to Orion passes to Orion when delivery of goods takes place to Orion’s premises or such other premises as nominated by Orion to the Supplier, with risk in the goods also passing to Orion at that time.
8 Intellectual property
The Supplier grants Orion a non-exclusive, unconditional, transferable, perpetual, irrevocable, royalty and licence fee free licence to use any intellectual property supplied by the Supplier in providing goods, services or works to Orion for any purpose.
The Supplier indemnifies Orion against all costs, damages (whether direct or indirect), proceedings, claims, losses or other expenses incurred by Orion as a result of any breach of the Agreement by the Supplier.
The Supplier is responsible for ensuring its risks of doing business are adequately covered, whether by insurance or otherwise.
If any of the goods, services or works provided by the Supplier fail to comply with this Agreement, Orion may at its option and without limiting any of its other rights against the Supplier:
a) cancel the Agreement; or
b) in the case of goods, return the goods to the Supplier; and
c) the Supplier shall refund the purchase price of the goods, services or works and all reasonable costs of Orion incurred by the cancellation (including, in the case of return of goods, any costs of returning the goods).
12 Orion’s termination for convenience
12.1 Orion may terminate this Agreement at any time by giving written notice to the Supplier.
12.2 If Orion terminates the Agreement under this clause 12:
a) the termination will not prejudice any rights or remedies in respect of any prior breach of the Agreement;
b) the Supplier will stop providing the relevant goods, services or works as soon as reasonably practicable after the date it receives Orion’s notice; and
c) Orion will pay the Supplier for:
i) all services or works performed, or goods supplied, by the Supplier under the Agreement up to the date of Orion’s notice;
ii) the actual costs reasonably incurred by the Supplier in ceasing to provide the goods, services or works in accordance with clause 12.2(b) above; and
iii) to the extent not captured by clauses 12.2(c)(i) and (ii) above, any other costs the Supplier has reasonably incurred or committed to up to the date of Orion’s notice to provide the goods, services or works which cannot be reversed or cancelled.
13 Confidentiality and privacy
13.1 The Supplier must:
a) keep any confidential information supplied by Orion confidential, use such information only for the purpose it is provided, and return such information to Orion at Orion’s request; and
b) comply with the Privacy Act 2020. Where the Supplier provides personal information (as defined in the Privacy Act 2020) to Orion, the Supplier warrants that it has all consents necessary to collect, use and disclose that personal information (including use in accordance with Orion’s privacy statement).
13.2 Orion will use any personal information provided by the Supplier in accordance with Orion’s privacy statement (which can be found at https://www.oriongroup.co.nz/privacy-statement/).
If a dispute or difference arises between the parties that is not resolved within 20 days of it arising, either party may submit the dispute to the arbitration of one arbitrator who shall conduct the arbitration in accordance with the Arbitration Act 1996. If the parties are unable to agree on the arbitrator, the President of the New Zealand Law Society or his or her nominee shall appoint an arbitrator, with such appointment final and binding. The decision of the arbitrator shall be final and binding on the parties.
15 Assignment and subcontracting
The Supplier may not assign or subcontract any of its rights or obligations under the Agreement without Orion’s prior written consent.