1. PARTIES
These terms and conditions shall apply to the agreement for the supply of goods and/or services between the supplying party named in this Order (“the Contractor”) and the University of Otago (“the University”).
2. ACCEPTANCE OF ORDER
(a) This Order shall be open for acceptance by the Contractor for the period stated or, if no period is stated, then for a period of 28 days from the date of the Order.
(b) These terms and conditions and those set out on the face of this Order or attached to it by the University (which shall prevail in the case of conflict) shall become the exclusive and binding agreement between the Contractor and the University when this Order is accepted by acknowledgement or by commencement of performance.
(c) Additional or different terms proposed at any time by the Contractor shall not be applicable unless accepted in writing by the University.
3. PRICE
Unless otherwise shown, the total price stated on the face of the Order is exclusive of GST. If no price is stated then the price shall be the agreed price between the parties or where no price has been agreed the Contractor's published or standard price less all discounts for trade supply, favoured customer status, prompt payment and all other available reductions. The price is inclusive of all goods, materials, labour, delivery costs, plant, power, and everything else required to complete the Order.
4. DELIVERY AND IDENTIFICATION
(a) The University's Order number shall be shown on all packages, invoices and correspondence.
(b) Partial deliveries need not be accepted by the University unless specified on the face of the Order.
5. TIME OF THE ESSENCE
The Contractor shall fulfil the Order by delivery of goods or performance of the agreed services strictly in accordance with any times specified in the Order. Such times may be amended by agreement between the parties in writing.
6. QUALITY
(a) Unless otherwise specified all goods shall be new and unused, of merchantable quality and fit for their purpose and all statutory and other provisions for the protection of purchasers of goods shall apply for the benefit of the University. All goods and services shall be identical to the specifications in the Order and the Contractor shall not in any way alter any service, provide extra services or supply goods different in quantity or specification except as agreed to in writing by the University. No payment shall be made to the Contractor or taken or accepted by the Contractor in respect of such different or extra goods or services.
(b) The University shall at any time be entitled by itself or an agent to inspect, test or monitor any or all goods and/or services supplied under this Order and the Contractor shall facilitate and co-operate as required.
(c) The University may reject in part or full any Order where goods or services supplied are of inferior quality, contrary to specification, in an unsatisfactory condition, not functioning in the way they were designed to function, or are otherwise unsatisfactory to the University or where the Contractor is unable fully to fill the order.
(d) The Contractor on request, shall remove any rejected items at its own expense, and shall, at the University's option, either supply further goods and/or services which are acceptable to the University or shall credit the University for the rejected goods and/or services.
7. CANCELLATION
(a) The University may at its option at any time and without assigning any reason therefor cancel this Order in relation to any undelivered goods or uncompleted services.
(b) Upon receipt of notice of cancellation the Contractor shall forthwith stop all performance under the Order. Subject to its rights hereunder the University shall remain liable to pay for such goods as have been delivered on a pro rata basis and the fair value of services provided prior to cancellation.
(c) Where the Order includes goods specifically manufactured or to be manufactured to the specifications of the University (but in no other case) the University shall pay a reasonable sum to cover the actual cancellation costs incurred by the Contractor.
(d) Notwithstanding cancellation the ownership of all goods delivered and the benefit of all services performed and any intellectual property under the Order shall pass to University in accordance with these terms.
8. INVOICING AND PAYMENT
(a) The Contractor shall submit invoices at the times agreed in this Order or in the absence of such agreement when the Order has been completely fulfilled.
(b) Where invoices are received and are able to be verified by University by the 5th working day of any month, payment shall be made by the 2nd to last business day of the month following the date of the invoice, unless other arrangements have been made and confirmed in writing.
(c) The Contractor shall not take or accept payment from the University for any reason where that payment is not due in accordance with this clause and shall not continue to hold or be entitled to set off any such amount.
9. RISK AND PROPERTY
Subject to any other agreement and subject to the terms hereof in relation to cancellation and rejection, property and risk:
(a) in goods, shall pass to the University upon delivery being acknowledged in writing by a duly authorised representative of the University. Such acknowledgement shall be of the fact of delivery only, and shall not be conclusive as to quantities delivered or the condition in which goods are received.
(b) in respect of services provided to the University shall pass upon completion of the services.
10. INSURANCE
(a) Where fulfilment of this Order involves the Contractor working on a University site the Contractor shall effect and maintain at his expense all adequate insurance over any plant, equipment and materials owned, leased, hired and or operated by the Contractor and third party motor vehicle liability insurance in respect of all motor vehicles owned, hired, used or under the physical or legal care, custody or control of the Contractor in connection with the performance of the work or any activity directly or indirectly connected with the work.
(b) The Contractor shall maintain adequate insurance over all goods covered by this order while at the Contractor's risk. Such insurance shall be held for the benefit of both parties hereto.
(c) No insurance arranged or held by the University shall affect the Contractor's obligations to insure and the Contractor shall not be entitled to claim the benefit of any such insurance.
11. ENVIRONMENT
The University operates a strict adherence to protect the environment policy. In performing the services the Contractor shall take all reasonable steps to care for the environment and to avoid nuisance or damage to the environment.
12. INDUSTRIAL RELATIONS
The Contractor shall be solely responsible for the terms and conditions of employment of its employees and for the maintenance of industrial harmony within the Contractor's workforce.
13. SAFETY PROVISIONS
The Contractor shall comply with the safety provisions of statutes and regulations applicable to the work performed. The Contractor shall provide all safety clothing and equipment unless specifically listed in the Order as being supplied by the University.
14. CONFIDENTIALITY
(a) The Contractor shall not (without the prior written approval of the University), whether during or after the period for delivery or performance under this Order, disclose to any person or in any way use any Confidential Information of the University which is acquired by the Contractor through its performance or purported performance of its obligations under this Order.
(b) For the purposes of this clause Confidential Information shall include (but not be limited to) all information which is copyright, in the nature of trade secrets, systems or knowhow or which is personal or private to the University or any of its employees, students or third parties with whom it deals.
15. INTELLECTUAL PROPERTY
(a) All Intellectual Property produced, used or acquired by the Contractor in connection with this Order including but not limited to plans, design work, knowhow and all written material becomes the unencumbered property of the University.
(b) Any layout, artwork, printing plates, bromides, negatives, drawings and similar real or intellectual property in whatever form (including electronic form) which is produced by or for the Contractor in connection with this Order is held at all times on behalf of the University and the Contractor agrees to deliver such material on request and warrants that it is legally able to do so.
16. INDEPENDENT CONTRACTOR STATUS
The Contractor shall remain in all respects an independent contractor and not an employee, agent or partner of the University.
17. APPLICABLE LAW
This order shall in all respects be construed and governed by the laws of New Zealand and unless the parties otherwise agree the jurisdiction to hear and determine all disputes touching or concerning the Order shall be exclusively that of the Courts of New Zealand.