[November 2017]

1 Definitions

1.1. “Conditions of Purchase” means these conditions of purchase;

1.2. “Confidential information” means information relating to business affairs, including research materials, trade secrets, know-how (including drawings, patterns, gauges, samples, and specifications) and the fact that the Contract or Order exists;

1.3. “Aurora” means Aurora Energy Limited;

1.4. “Contract” means a purchase agreement made by the placing of an Order, and includes these Conditions of Purchase, and any other terms and conditions which the parties have agreed in writing will apply to the Products.

1.5. “Delivery” means the delivery of the Products in good order and condition to a location nominated by Aurora and in the case of Products which are Work means the completion of the Work to Aurora’s satisfaction at a location nominated by Aurora. “Deliver” has a corresponding meaning;

1.6. “Order” means an order placed by Aurora on a Purchase Order form referencing these Terms and Conditions of Order;

1.7. “Products” means the goods specified in the Order and all parts or components of those goods and, where the context allows, the Work to be done by you as specified in the Order;

1.8. “you” and “your” means the vendor or supplier to whom the Order is issued;

1.9. “Work” means the works and/or services to be carried out by you as specified in the Order.

2 Existence of the contract

2.1. These Conditions of Purchase will prevail over any conditions of sale included by you in any requisition form, purchase vouchers, delivery dockets or in any other form, correspondence or communication, unless otherwise specifically agreed to in writing by Aurora, provided that where you and Aurora enter into any other contract which contains terms and conditions that conflict with these Conditions of Purchase, then the terms and conditions of that contract shall prevail.

2.2. Aurora may cancel any Order unless accepted by you in writing or where required the Products therein are Delivered by you, within 10 working days of date of the Order.

3 Quantity forecasts

3.1. Where Aurora gives you any estimate of Aurora’s future requirements of the Products, these estimates are indicative only and may prove to be inaccurate. You confirm that you will not rely on them in any circumstances.

4 Marking of products, price and terms of payment

4.1. The price as specified in the Order shall apply to the Contract. No variation of the price will be allowed unless agreed to in writing by Aurora. If the price is omitted on the Order the price will be that specified in any quotation given by you and accepted by Aurora, or otherwise the lowest prevailing market price for the Products, as determined by Aurora. All prices are exclusive of GST. The price shall include Delivery costs, insurance and installation and maintenance costs.

4.2. You must:

(a) on Delivery of the Products, send detailed advice notes (packing slips), which must accompany the Products (unless otherwise agreed); and you must as soon as practicable thereafter send your tax invoices for the Product which complies with the Goods and Services Tax Act 1985 to Aurora, Accounts Payable, PO Box 5140, Dunedin 9054, New Zealand.

(b) send by the 10th day of each month a statement of all invoices rendered during the previous calendar month (unless otherwise agreed);

(c) correctly record the amount payable to you under any Contract in the tax invoice(s) referred to in clause 4.2(a);

(d) clearly mark Aurora’s Order numbers and any part numbers on all invoices, advice notes, statements, correspondence, packages and packing;

(e) clearly mark barcodes and other identifying information on the Products and packages and packaging for the Products, as required by Aurora; and

(f) clearly indicate any substances in the Products which are or may be hazardous to human health, animal health or the environment by clearly marking those Products and their packaging and by including appropriate and prominent precautions in documentation accompanying the Products.

4.3. Aurora may set off against any payment due to you by Aurora any amounts owing by you to Aurora, including amounts owing due to the return of Product to you by Aurora.

4.4. Subject to clauses 4.3 and 5.1, and provided that no term of the Contract has been breached, Aurora will pay for the Products monthly in arrears by the last day of the month (unless otherwise agreed), where the Products have been Delivered and Aurora has received your tax invoice on or prior to the 3rd business day of the month following delivery. All payments shall be made in New Zealand currency, unless agreed otherwise in writing by Aurora.

5 Quality, packing and delivery

5.1 Without limiting Aurora’s rights under any law, Aurora may at its sole discretion inspect the Products prior to at any time after Delivery. If the Products fail to meet the specified quality, quantity, description or standards or are unfit for the purpose required, Aurora may reject the Products and cancel all or part of the Order. If the Order is cancelled pursuant to this clause, then Aurora shall not be liable for payment of any amount for the Products included in the cancelled Order or part thereof.

5.2 You will adequately pack and protect the Products against damage and deterioration and you must Deliver the Products at your cost not later than the time(s) specified in the Order. Time will be of the essence. You must advise Aurora of likely delays to Delivery. Aurora may cancel all or part of an Order where Delivery is delayed, or where Delivery is not made in full.

5.3 Aurora accepts no responsibility for the Delivery of the Products (unless otherwise agreed) nor for packing materials or cases.

6 Passing of title and risk

6.1. Risk and title to the Products will remain with you until the Products have been Delivered to Aurora when clear title and risk will pass to Aurora.

7 Warranties

7.1. In addition to all other warranties, conditions or other terms express or implied by law or otherwise, you warrant to Aurora and to any purchaser of the Products from Aurora that:

(a) at the time of Delivery the Products will be new and fit for the usual purposes for which they are intended and fit for any particular purpose made known to you;

(b) the Products will comply with any agreed specifications and applicable statutory and regulatory requirements;

(c) the operation, performance and output of the Products and the result of the Work:

i. will not be affected by any date problem relating to the passing of time or change in year; and

ii. will (where applicable) conform to the Gregorian calendar as adopted by Great Britain and its dominions and New Zealand Standard time as defined in the Time Act 1974;

(d) the Products will be free of any security interest, lien or other encumbrance;

(e) the Products will not infringe nor violate any intellectual property rights;

(f) the Products will be Delivered within a reasonable time where a time for Delivery is not specified in the Order;

(g) you have the right to supply the Products;

(h) the Work will be performed by persons with the requisite skill and experience; and

(i) the Products will be free of any defects in workmanship or materials.

7.2. All warranties, whether expressed or implied in the Contract or by law, shall remain in full force and effect notwithstanding the fact Aurora may have accepted the Products.

8 Default and cancellation

8.1 If you breach any of the warranties contained in clause 7.1 or otherwise breach any provision in any Contract then at the sole option of Aurora and without prejudice to any other remedy or right:

(a) Aurora may reject the Products in whole or in part and return the Products to you at your risk and expense and you must immediately reimburse Aurora for any monies paid in respect of any rejected Products; or

(b) Aurora may require you to replace, repair, reinstate or resupply the Products at your expense so they conform to the Contract; or may have the Products replaced, repaired, or resupplied by another entity and recover the cost of doing so from you.

8.2 If you breach any of the warranties in clause 7.1 or a warranty in any Contract, Aurora may suspend payment for the Products until the breach has been remedied to the satisfaction of Aurora.

8.3 Without limiting clauses 2.2, 5.1 and 8.5, Aurora may cancel any Order on 30 days written notice if you have breached the Contract and failed to remedy the breach within seven days after written notice has been given specifying the breach and requiring it to be remedied. Breach of any warranty by you may be treated by Aurora as breach of the Contract whether or not Aurora elects to accept any of the Products.

8.4 Either party may cancel any Order immediately if the other party becomes bankrupt, ceases business, goes into liquidation, becomes insolvent, appoints a receiver or enters into a formal proposal for a compromise with creditors under the Companies Act 1993 or under any other law or arrangement.

8.5 No failure or delay on the part of Aurora to exercise any of its rights in respect of any default under the Contract by you will prejudice its rights in connection with that default or any subsequent default.

8.6 Aurora may at its sole discretion cancel its Order with you by giving you immediate notice in writing of cancellation where by reason of flood, storm, fire, act of God, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining any raw materials, energy or other supplies, failures of power, water supply or telecommunication services, labour disputes of whatever nature and any other reason beyond your control, you are unable to Deliver the Products to Aurora by the due date for Delivery. If an Order is cancelled pursuant to this clause, Aurora shall not be liable for payment of any amount to you in respect of the cancelled Order.

8.7 If the Order is cancelled you will return to Aurora all payments made. However if upon cancellation Aurora elects to keep or take any Products it will pay you for them but otherwise no compensation will be payable to you upon cancellation of an Order.

Cancellation of an Order does not affect any responsibilities which are intended to continue or come into effect under the Contract.

9 Indemnity

9.1. You indemnify Aurora against all direct, indirect and consequential costs (including legal costs on a solicitor/client basis), losses, damages or liability in connection with any claims by or on behalf of any person(s):

(a) arising out of negligence or other fault or breach of any duty or obligation owed to Aurora or any person by you, your employees, agents and subcontractors, in connection with the performance of your obligations under the Contract; and

(b) pursuant to any statutory or other legal requirement relating in any way to the Products.

10 The relationship between You and Aurora Energy

10.1 Nothing in these Conditions of Purchase should be interpreted as constituting either Aurora or you as an agent, partner, or employee of each other and neither you nor Aurora may pledge the credit of the other nor represent to anyone that:

(a) it is the other party;

(b) it is an agent, partner or employee of the other party; or

(c) it has any power or authority to incur any obligation of any nature on behalf of the other party.

10.2 Aurora’s relationship with you is not exclusive, you are free to supply the Products to other purchasers and Aurora is free to purchase the Products (including the Products equivalent to yours) from other suppliers.

10.3 You acknowledge that for the purposes of each Contract, Aurora is to be treated as a “consumer” in terms of the Consumer Guarantees Act 1993.

11 Confidentiality 

11.1 Each party undertakes to the other that neither it nor its officers, employees, agents and or subcontractors will divulge Confidential Information to others, without the prior written consent of the other party, otherwise than as required in the ordinary course of performing its obligations under the Contract or as may be necessary for Aurora to promote, sell or service the Products or as required by law.

11.2 All Confidential Information provided by Aurora will be and will remain the property of Aurora, and you must:

(a) use the Confidential Information only for the purpose of a Contract and/or Order; and

(b) return the Confidential Information to Aurora upon Aurora’s request at any time or if no request is made, upon completion or termination of a Contract.

12 Health and safety

12.1. You warrant that you have complied and will comply with the Health and Safety in Employment Act 2015, all approved codes of practice under the Act, and all other statutory and regulatory provisions, by-laws, codes and standards connected with the Products.

13 Assignment and sub-contracting

13.1 You may not assign or otherwise transfer any of the rights, benefits or obligations under the Contract, without the prior written consent of Aurora.

13.2 You must not sub-contract or otherwise arrange for another person to discharge any of your obligations (excluding Delivery) under the Contract without the prior written consent of Aurora. Notwithstanding Aurora’s consent, you will remain fully responsible for all obligations to Aurora under the Contract.

14 Law and construction

14.1 Headings appear as a matter of convenience only and will not affect the interpretation of the Contract.

14.2 The Contract is governed by New Zealand law. Any reference to legislation includes references to delegated legislation made under that legislation and to legislation in substitution for or in amendment of the same.

14.3 The singular includes the plural and vice versa.

15 Notices

15.1 Any notice to be given under any contract between Aurora and you must be in writing and must be delivered or sent by post or facsimile to the registered office of the receiving party, or it the receiving party does not have a registered office then to the receiving party’s usual place of business.

15.2 The receiving party to whom a notice is sent will be deemed to have received the notice:

(a) if sent by post, 2 business days after it has been posted; or

(b) if sent by facsimile, upon its receipt as to which a confirmation slip or other confirmation of transmission will be adequate proof of receipt.