1.1 “Order” means a PAE purchase order or a sub-contract order issued to you by PAE for the Completion of the Services in accordance with these conditions of services and other specified documents;
1.2 “Confidential information” means information relating to business affairs, including research materials, trade secrets, know-how (including any Document, patterns, gauges and samples) and the fact that the Contract or Order exists;
1.3 “PAE” means PAE (New Zealand) Limited;
1.4 “Contract” means a purchase agreement made by the placing of an Order, and includes these conditions of services, and any other terms and conditions which the parties have agreed in writing will apply to the Services;
1.5 “Completion” and “Completed” means the completion of the Services or the delivery of goods to PAE’s satisfaction at a location nominated by PAE, within the date and/or time specified by PAE. “Complete” has a corresponding meaning;
1.6 “Document” means documents, drawings, specifications, reports, design notes, manuals, computer software (including source code and object code) and files, video recordings, photographs, and all other information;
1.7 “you” and “your” means the contractor, subcontractor or supplier to whom the Order is issued;
1.8 “Services” means the works and/or services to be carried out by you or new goods or new products to be supplied by you as specified in the Order including goods necessary for the completion of any works and/or services.
EXISTENCE OF THE CONTRACT AND ORDER OF PRECEDENCE
2.1 In the event that you have signed an alternative agreement with PAE for the provision of the Goods or Services (“Alternative Agreement”) and that Agreement is current and operative, the terms and conditions of that Alternative Agreement shall take precedence. In the absence of any such Alternative Agreement, these Conditions for the Supply of Goods or Services will apply.
2.2 These Conditions for the Supply of Goods or Services will prevail over any conditions included by you in any requisition form, offer of services, proposal, tender, quotation or in any other form, correspondence or communication, unless otherwise specifically agreed to in writing by PAE.
2.3 Subject to clause 2.1, these Conditions for the Supply of Goods or, a corresponding Order and any other Document referred therein shall constitute the entire agreement and supersede all previous communications between the parties. No subsequent amendment or agreement by you or any of your agents or employees shall be binding unless confirmed in writing by PAE.
2.4 PAE may cancel the Order unless the Order has been accepted by you in writing or where you do not complete the Services by the specified date and/or time for Completion.
SUITABILITY FOR THE LOCATION
3.1 In so far as is necessary for the Completion of Services under these Conditions for the Supply of Goods or Services you acknowledge that you have fully satisfied yourself of the relevant physical conditions and access to the location at which the Services are to be Completed.
3.2 You acknowledge that you have not and shall not rely on any information given or statement made to you by PAE in respect of the condition or future condition of the location at which the Services are to be Completed other than as provided to you in a manner specified in clause 16.1.
4 Where PAE gives you any estimate of PAE’s requirements, these estimates are indicative only and may prove to be inaccurate. You confirm that PAE shall not be liable for any additional cost or adjustment in the time for completion of the Services, if such estimates are proven to be inaccurate.
PRICE AND TERMS OF PAYMENT
5.1 You must:
(a) upon Completion of the Services and acceptance of the Services by PAE, as soon as practicable send tax invoices to PAE at the address specified on the Order;
(b) correctly record the amount payable to you under this Contract (which shall be the price determined to be paid when the Services were ordered); and
(c) clearly mark PAE’s Order numbers and any other relevant reference numbers on all invoices, requests for any progress payment certificates and correspondence.
5.2 You will provide to PAE your correct tax invoice no later than five (5) calendar days following the end of the month in which the Services are Completed. Where your invoice is received within this timeframe, PAE will pay your invoice no later than the last day of the month following the end of the month in which the Services are Completed.
5.3 Unless specified otherwise, the prices shall be lump sum, firm and fixed. Any rates or unit prices that are included in the Order shall be firm and fixed for the period of performance of the Services. PAE does not make payment in advance of the delivery of Goods or Services to PAE. Unless agreed otherwise, PAE shall not pay you any cost fluctuations.
5.4 All prices for the Services shall exclude goods and services tax, which shall be, where applicable, payable by PAE in addition to the price.
QUALITY, PRECAUTIONS AND DAMAGE TO THE SERVICES
6.1 The quantity, quality and description of the Services are as specified in the Order or as may otherwise be agreed in writing by PAE.
6.2 Any goods supplied by you will be new, fit for purpose and free from defects in design, material or workmanship.
6.3 In the event that you discover any ambiguity or discrepancy in the specification of the Order, you shall notify PAE thereof without delay and shall comply with the determination of PAE as to such ambiguity or discrepancy.
6.4 Without limiting PAE’s rights under any law, PAE may at its sole discretion inspect any part of the Services prior to or upon Completion. If the Services do not conform to the specified quality, quantity, description, standards, or are unsatisfactory for the purpose required then PAE may reject the Services and cancel the Order. If the Order is cancelled pursuant to this clause, then PAE shall not be liable for payment of any amount to you in respect of the cancelled Order, and shall be entitled to exercise its rights under clause 10.1 of these conditions of services.
6.5 You will adequately protect the Services against damage or loss, and complete the Services to the specified quality requirements. Time will be of the essence. You must promptly advise PAE of any likely delays.
7 All risks for the Services will remain with you until the Completion to PAE’s satisfaction and acceptance by PAE. Passing of the risk upon acceptance of the Completed Services by PAE shall not remove your warranty obligations stipulated in clause 8 below.
8.1 In addition to all other warranties, conditions or other terms express or implied by law or otherwise, you warrant to PAE and to any purchaser of the Services from PAE that:
(a) the Services have been Completed to the agreed specifications and applicable statutory requirements, are of requisite quality, fit for the usual purposes for which they are intended and fit for any particular purpose made known to you;
(b) the Services will be provided free of any security interest, lien or other encumbrance;
(c) the Services will not infringe nor violate any intellectual property rights;
(d) you have the right to supply the Services; and
(e) the Services will be performed by persons with the requisite skill and experience.
8.2 If you breach any of the warranties contained in clause 8.1 then you must, upon written request from PAE, remove and replace with new, any defective materials or work which may appear within the defects liability period from completion of the Services as specified in the Order. If no specific period is specified, such period shall be 12 months from the date of Completion. In the event of your failure to fulfil these obligations, PAE may arrange for the defective materials or work to be replaced or rectified and deduct the cost thereof from monies payable to you, or pursue the cost as a debt payable by you to PAE. If PAE decides to retain the defective materials or work, you will agree an equitable adjustment to the price with PAE in respect thereof.
HEALTH AND SAFETY
9.1 You warrant that you have complied and will comply with the Health and Safety at Work Act 2015 and its future amendments and re-enactments, all approved codes of practice under that Act and all other applicable regulatory provisions, standards and requirements, including but not limited to, the Resource Management Act 1991 and amendments.
9.2 You will have in place and comply with a detailed Health and Safety Management Plan setting out your procedures for ensuring that any work undertaken under these Conditions for the Supply of Goods or Services is conducted safely. You will at all times be able to produce proof of the Health and Safety Management Plan.
9.3 You will comply with any Health and Safety requirements and instructions notified to you by PAE.
DEFAULT AND CANCELLATION
10.1 If you breach any of your obligations contained herein or in any Contract then at the sole option of PAE and without prejudice to any other remedy or right:
(a) PAE may reject the Services in whole or in part and instruct you to rectify any defects therein at your risk and expense and you must immediately reimburse PAE for any monies paid in respect of any rejected Services; or
(b) PAE may require you to rectify any defect at your expense so they conform to the Contract; or may have the defects rectified by another contractor, subcontractor or supplier, and recover the cost of doing so from you.
10.2 If you breach any of the warranties in clause 8 or a warranty in any Contract, PAE may suspend payment for the Services until the breach has been remedied.
10.3 PAE may cancel any Order by 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 PAE as breach of the Contract whether or not PAE elects to accept any part of the Services.
10.4 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.
10.5 No failure or delay on the part of PAE 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.
10.6 PAE 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 complete the Services by the due date for Completion. If an Order is cancelled pursuant to this clause, PAE shall not be liable for payment of any amount to you in respect of the cancelled Order.
10.7 If the Order is cancelled you will return to PAE any payments made to you for Services that were either not performed by you or were rejected by PAE. If upon cancellation, PAE elects to use a part of the Services, it will pay you for them but otherwise no compensation will be payable to you upon cancellation of an Order.
10.8 Cancellation of an Order does not affect any responsibilities of either party, which are intended to continue or come into effect under the Contract.
INDEMNITY & INSURANCE
11.1 You indemnify PAE against any costs, 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 responsibility owed to PAE or any person by you, your employees, agents and subcontractors in the performance of or non-compliance with the Contract; and
(b) pursuant to any statutory or other legal requirement relating in any way to the Services.
11.2 You will effect and maintain at your own expense all necessary insurance cover, including but not limited to, the third party public and legal liability, the works and the Services, the materials in your possession, your own plant, equipment and vehicles, and any other insurance cover that you think expedient or necessary.
11.3 Nothing in this agreement shall be interpreted as a personal guarantee by any employee of PAE for any liability or obligation.
THE RELATIONSHIP BETWEEN YOU AND PAE
12.1 Nothing in these conditions of services shall be interpreted as constituting either PAE or you as an agent, partner, or employee of each other and neither you nor PAE 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.
12.2 PAE’s relationship with you is not exclusive, you are free to supply the Services to other purchasers and PAE is free to procure the Services (or other services similar to those provided by you) from other suppliers.
12.3 You acknowledge that for the purposes of each Contract PAE is to be treated as a “consumer” in terms of the Consumer Guarantees Act 1993 and amendments.
PRIVACY & CONFIDENTIALITY
13.1 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 PAE to promote, sell or provide services to its customers or as required by law.
13.2 All Confidential Information provided by PAE will be and will remain the property of PAE, 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 PAE upon PAE’s request at any time or if no request is made, upon completion or termination of a Contract.
13.3 The Service Provider will comply with the Privacy Act 2020 and any regulations made under that Act, amendments made to that Act and any statute enacted in substitution for that Act at all times while performing the Services.
13.4 The Service Provider will notify PAE of any privacy breach as defined in the Privacy Act 2020 whether or not the breach is a notifiable breach under that Act where the information that is the subject of the privacy breach was provided by or is about the employees, agents or customers of PAE and its customers.
ASSIGNMENT AND SUB-CONTRACTING
14.1 You may not assign or otherwise transfer any of the rights, benefits or obligations under the Contract, without the prior written consent of PAE.
14.2 You must not sub-contract or otherwise arrange for another person to discharge any of your obligations under the Contract without the prior written consent of PAE. Notwithstanding PAE’s consent, you will remain fully responsible for all obligations to PAE under the Contract.
LAW AND CONSTRUCTION
15.1 Headings appear as a matter of convenience only and will not affect the interpretation of the Contract. All communications between the parties shall be in English language.
15.2 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.
15.3 The singular includes the plural and vice versa.
16.1 Any notice to be given under any contract between PAE and you must be in writing and must be delivered or sent by post or facsimile or electronic mail to the receiving party’s usual place of business.
16.2 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 recorded on a confirmation slip; or
(c) if sent by electronic mail, upon its receipt as electronically recorded in the recipient’s computer system.