Terms and conditions
LEGAL AND PRIVACY
Accuracy of content: While Electrix, trading as Omexom New Zealand, has endeavoured to take all reasonable and appropriate care in the preparation of the content of this website and has no reason to believe that any information contained on this website is inaccurate, Electrix Ltd does not warrant the accuracy, adequacy, or completeness of such information, or that such information is error free. Electrix does not undertake to keep this website updated.
Electrix does not accept liability for any loss or damage which may result either directly or indirectly from reliance by you upon the accuracy or currency of information contained on this website including without limitation, where such loss or damage is a result of or contributed to, by the negligence of Electrix.
Jurisdiction: Details contained on this website relating to Goods have been prepared in accordance with New Zealand law and may not satisfy the laws of any other jurisdiction. We do not warrant that the details on this website concerning those Goods will satisfy the laws of any other jurisdiction.
It is your responsibility to determine whether these details satisfy the laws of the jurisdiction where you reside (if that jurisdiction is outside New Zealand) and if the details do not satisfy the laws of your jurisdiction, you may not order any goods from this website.
Collecting Information: Whenever you access this website, Electrix will collect the following types of information from you:
- The IP address of your machine when connected to the Internet and the domain name from which you are accessing the Internet;
- The operating system and the browser your computer uses and any search engine you are using;
- The date and time you are visiting;
- The URLs of the pages you visit, as well as any other information you may explicitly provide in the course of accessing the website such as your name, gender, email address and other personal details such as telephone number.
Privacy Statement: Any personal data collected on this Website is not disclosed to third parties without your express consent. We do not sell, rent or trade your personal information to third parties for marketing purposes.
The www.omexom.co.nz website is the property of Electrix Limited trading as Omexom, a company registered in New Zealand with registered company number 52181 whose registered address is located at 2 George Bourke Drive, Mount Wellington, Auckland 1060, New Zealand. Omexom is a brand of VINCI Energies.
The Site is governed by the laws of New Zealand. Since the legal notices may be changed at any time, without notice, we advise you to read them regularly. Last Update: 17/04/2023
Microsoft Ireland Operations Limited, One Microsoft Place, South County Business Park, Leopardstown, Dublin 18 D18 P521. Reception: +353 (1) 2953826
This site is hosted on the Microsoft cloud offer (Azure). It is geographically located in the Microsoft hosting center in Western Europe located in the Netherlands. For more information, please refer to: https://www.microsoft.com/fr-fr/trust-center/privacy
Contact : +33 9 70 01 90 90
TERMS AND CONDITIONS OF GENERAL USE
We make no promise that the Site will be maintained with the same DNS names, IP addresses, authentication methods or URLs, or that it will always be available or uninterrupted.
Omexom owns, reserves and retains all property rights, and in particular intellectual property rights, to this Site and its content, including reproduction rights. Accordingly, the partial or total reproduction of this Site or its content is strictly forbidden without Omexom’s written authorisation.
Brands, patents, logos and other distinctive signs appearing on this Site are the property of Omexom or subject to a dedicated user’s licence to Omexom’s benefit. No rights or licences may be granted in respect thereof without the written authorisation of Omexom or of the third party owning those rights.
credits: Omexom NZ. The photos used on this website are non-contractual. Concept, Design and Programming. Tequila Rapido https://tequilarapido.com/
Users of this Site must read and agree to abide by the terms and conditions of use.
Omexom shall not be liable for any direct or indirect loss or damage resulting from accessing or using this Site and/or its content, including inaccessibility, loss of data, damage, destruction and viruses that could affect the user’s computer equipment and/or the presence of viruses on the Site, including without limitation, where such loss or damage is a result of or contributed to, by our negligence.
Omexom has used all reasonable care and skill to provide reliable content on this Site and has no reason to believe that any information contained on this Site is inaccurate, but gives no warranty of the accuracy, adequacy, or completeness of such information, or that the content is free from inaccuracies or omissions.
Accordingly, Omexom cannot accept liability for any errors or omissions or for the unavailability of information or services. Omexom reserves the right to improve and/or change the content of its Site at any time and without notice. We do not undertake to keep this website updated. Accordingly, users acknowledge that they use such information at their own risk.
LINKS TO OTHER WEBSITES
This Site may include links to other websites or Internet sources. Insofar as Omexom cannot control these external sites and sources, it is not responsible for enabling users to access these external sites and sources.
Accordingly, Omexom shall not be liable for the content, advertising, products, services or any other material available on or from these external sites or sources. These links are offered as a service to Omexom Site users. The decision to activate the links resides solely with Site users.
We would remind you that non-affiliated websites are subject to their own terms and conditions of use.
Whenever you access this website, we will collect the following types of information from you:
- The IP address of your machine when connected to the Internet and the domain name from which you are accessing the Internet;
- The operating system and the browser your computer uses and any search engine you are using;
- The date and time you are visiting;
- The URLs of the pages you visit, as well as any other information you may explicitly provide in the course of accessing the website such as your name, gender, email address and other personal details such as telephone number.
Any personal data collected on this Website is not disclosed to third parties without your express consent. We do not sell, rent or trade your personal information to third parties for marketing purposes.
ACCESS RIGHT TO YOUR INFORMATION
In addition to access as stated above, you have the right to:
- Request that we rectify any incorrect personal data that we hold
- Request a copy of the personal data that we may hold about you
- Object to the processing of personal data
- Withdraw your consent if the processing is based on your consent
- If you believe that Omexom has not complied with your data protection rights you can make a complaint to the Office of the Privacy Commissioner (OPC). For further details see https://www.privacy.org.nz
Omexom is committed to ensuring the integrity and confidentiality of the personal data that we hold. Physical, administrative and organizational security measures will be enacted to ensure that access to your personal data is restricted to personnel with a need to have access to it.
Cookies are text files placed on your computer to collect standard internet log information and visitor behaviour information. This information is used to track visitor use of the website and to compile statistical reports on website activity. For further information about cookies, visit www.aboutcookies.org or www.allaboutcookies.com.
You can set your browser to not accept cookies and the above websites will provide more detail on how to remove cookies from your browser.
TERMS AND CONDITIONS OF PURCHASE
Electrix, trading as Omexom New Zealand, engages in a wide range of suppliers in the delivery of our services across our chosen markets.
We are interested in working with quality contractors and sub-contractors with a strong health, safety and environmental focus and those who can provide quality, innovation, safety and commercial value for our customers.
Our Terms and Conditions of Purchase CM830
Terms and Conditions of Purchase
1 – Interpretation
1.1 In this Agreement, except where the context requires otherwise, the following terms shall have the meanings shown:
a. “Agreement” means the Purchase Order and these Terms and Conditions.
b. “Client” means, where relevant, a client of Electrix, whether party to a head contract with Electrix or otherwise, in respect to the works of which the Goods form part, as may be stated in the Purchase Order.
c. “Completion” is that stage when all of the Goods have been provided as required by the Agreement.
d. “Date of Delivery” means the last date when the Goods were delivered at the Delivery Point.
e. “Date for Delivery” means the required date(s) for delivery of the Goods, specified in the Purchase Order, by which the Supplier shall deliver the Goods at the Delivery Point and, where applicable, as the date or dates may be changed in accordance with the Agreement.
f. “Delivery” shall mean the supply or provision of Goods under this Agreement.
g. “Delivery Point” means the place specified in the Purchase Order to which the Goods are to be delivered by the Supplier.
h. “Direction” means agreement, approval, assessment, authorisation, certification, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request, or requirement but does not include command or control of how the works, in respect to the Goods, are to be performed.
i. “Goods” means the goods and / or services and any associated machinery, plant, equipment, materials, Supplier Data, or other items of any kind (including any part thereof), whether or not fixed or incorporated, described in the Agreement or otherwise, which are to be provided by the Supplier, to satisfy the requirements of this Agreement and includes, where applicable, any associated manufacture, preparation, assembly, delivery, testing, supply, installation, and commissioning.
j. “Intellectual Property Rights” means all industrial or intellectual property rights including patent rights, copyrights, registered design, design rights, trademarks, service marks, confidential information and trade secrets, moral rights and other similar proprietary rights, all rights of whatever nature in computer programs, firmware, micro-code and other computer software and data and all intangible rights and privileges of a nature similar to any of the foregoing.
k. “Laws and Legal Requirements” means any applicable statute, regulation, by-law, and ordinance in force from time to time in New Zealand and includes the common law and any obligation imposed by any relevant codes, standards, and directions.
l. “Modern Slavery” means any activity, conduct or practice constituting an offence in relation to slavery, involuntary servitude, human trafficking, forced labour, debt bondage and other equivalent exploitation as outlawed or prohibited under any applicable anti-slavery and human trafficking laws, statutes, regulations, and codes from time to time in force in all applicable jurisdictions.
m. “Premises” means the place or places made available by the Supplier (and any Sub-supplier) where the Goods are to be manufactured or assembled.
n. “Price” means the values for the Goods shown in the Purchase Order.
o. “Purchase Order” means the document bearing that title, including any attachments and which together with these Terms and Conditions, forms the Agreement.
p. “Site” means the places, if any, stated in the Purchase Order, where the Goods are to be installed, together with any other places made available to the Supplier by Electrix, for the purposes of this Agreement and, where applicable, includes the Delivery Point.
q. “Specification” means any design, plans, drawings, calculations, data, or other information relating to the Goods.
r. “Sub-supplier” means any supplier or contractor of the Supplier who supplies materials, equipment, sub-assemblies, or services to the Supplier, in connection with the Goods.
s. “Supplier” means the addressee in the Purchase Order, being the party responsible for providing the Goods.
t. “Supplier Data”” means any specifications, calculations, drawings or other similar information which are to be submitted by the Supplier prior to manufacture of the Goods or at any time during the course of manufacture or execution or to bring to Completion the performance of its obligations to execute and/or deliver the Goods.
u. “Terms and Conditions” means the terms and conditions of purchase set out in this document.
1.2 “Writing” or “written” includes facsimile transmission, online businesses or project management systems and email.
1.3 Words in the singular include the plural and vice versa.
1.4 Any reference in this Agreement to a statute or a provision of a statute shall be construed as reference to the statute or provision as amended, re-enacted, or extended at the relevant time.
1.5 Headings to clauses are for convenience only and shall not affect their interpretation.
1.6 In the interpretation of the Agreement, no rules of construction apply that would disadvantage a party because that party was responsible for drafting the Agreement or part of the Agreement.
1.7 If the Supplier discovers any discrepancies between the various documents that comprise the Agreement, the Supplier shall refer the discrepancies to Electrix and Electrix shall issue Directions to resolve such discrepancies.
1.8 References to a Clause, is a reference to a clause of these Terms and Conditions.
1.9 These Terms and Conditions may be amended by Electrix at any time, without notice.
2 – Acceptance
2.1 The Supplier shall be deemed to have accepted the Agreement upon the earlier of:
a. Signature by the Supplier of the Agreement or some other written acknowledgement;
b. Commencement of Delivery of the Goods by the Supplier to the Delivery Point;
c. Submission to Electrix by the Supplier of an invoice for payment in respect of the Goods, or
d. Seven (7) days from the issue of the Purchase Order to the Supplier, where the Supplier has not notified Electrix of its non-acceptance of the Purchase Order or any part thereof, within those Seven (7) days.
3 – Specifications
3.1 The quantity, quality and description of the Goods shall be as specified in the Purchase Order or as may otherwise be agreed in writing by Electrix.
3.2 If the Supplier discovers any ambiguity or discrepancies in any Specification, the Supplier shall immediately notify Electrix and shall comply with the determination of Electrix as to such ambiguity or discrepancy.
3.3 The Supplier shall, within the time limits which may be specified in the Purchase Order or otherwise within a reasonable time period, submit any Supplier Data as required by the Agreement or such other Supplier Data as is reasonably required by Electrix.
4 – Intellectual Property Rights
4.1 The Supplier warrants that any design, materials, equipment, documents and/or methods of working provided by the Supplier shall not infringe any Intellectual Property Rights. The Supplier hereby grants to Electrix an unlimited, irrevocable, royalty-free, and assignable Intellectual Property Rights license in respect of all its design, goods, material, equipment documents and/or methods of working used in or forming a part of the Goods, which Electrix may make by like grant to the Client.
4.2 The Supplier shall be liable for all damages loss, costs and expense incurred or suffered by Electrix, and shall indemnify Electrix against all liabilities, damages, costs and other compensation awarded against or paid by Electrix, in connection with any infringement or alleged infringement, arising from or occasioned by or in relation to the use of any Intellectual Property Rights in any Goods by Electrix, pursuant to this Agreement and all legal or other expenses incurred by Electrix in or about the defence or settlement of any infringement claim.
5 – Correspondence Notices and Documentation
5.1 All documentation, notices and correspondence relating to the Agreement, including delivery orders, invoices, packing lists, containers, delivery notes, airway bills and bills of lading, shall show the Purchase Order number.
5.2 Documentation, notices, and correspondence shall be transmitted to the relevant representative of the party nominated for such purpose in the Purchase Order, to the postal or email address shown or as may otherwise be advised in writing.
6 – Price of Goods
6.1 Unless otherwise expressly excluded in this Agreement, the Price shall be deemed to be inclusive of all labour, plant, materials, equipment, machinery, vehicles, tools, facilities and services, overheads, profit and all ancillary and other works, expenditure, risks, overtime, contingencies and all other costs and allowances, required or necessary to be undertaken, for the Goods to be provided.
6.2 Electrix shall not be responsible for providing any services, other than those (if any) expressly stated in the Purchase Order.
6.3 Unless otherwise indicated in the Purchase Order, the Price shall be firm and fixed and no adjustment in the Price may be made on account of change in any legislation, increased costs of labour, materials, transport or other input costs or fluctuation in rates of exchange or otherwise.
7 – Payment
7.1 Unless otherwise specified in the Purchase Order, the Supplier shall submit to Electrix, an invoice for the Goods, subject to any other requirements set out elsewhere in the Agreement. The invoice shall be submitted no earlier than the Date of Delivery (and if earlier, shall be deemed to have been submitted on the Date of Delivery) and no later than two (2) months from the Date of Delivery (and if later, shall be deemed to be invalid).
7.2 Unless otherwise stated in the Purchase Order, Electrix shall pay the Supplier the amount properly due, by the 28th day (or the next working day after that day) of the month following the month in which receipt of the Supplier’s properly completed invoice is received by Electrix.
7.3 The Supplier’s invoice(s) shall be sent to the address shown on the Purchase Order, and contain not less than the following particulars:
a. Name and address of Electrix’s representative as set out in the Purchase Order;
b. Name and address of the Supplier;
c. Purchase Order number;
d. The date of the invoice and the total amount claimed;
e. The amount of any applicable goods and services tax/value added tax; and
f. Description of each item of Goods supplied and work done in accordance with the Agreement, the quantity delivered and unit price for each item.
7.4 All invoices and correspondence regarding payments shall be signed by the supplier’s representative and forwarded to Electrix’s representative using the contact details specified in the Purchase Order, or as this may be otherwise advised by Electrix, in writing, including the requirement for electronic invoicing. The requirement for invoices to be signed may be waived for the provision of services only.
7.5 Notwithstanding Clause 7.2, Electrix shall be entitled to deduct and set-off from any moneys otherwise owing to the Supplier under the Agreement or otherwise, the amount of any claim for loss, damages, costs or expense, which has been, or may be, incurred by Electrix, by reason of any breach of, or failure to observe the provisions of, the Agreement by the Supplier, or which is otherwise owed to Electrix, or which is awarded to Electrix in any arbitration or litigation in connection with the Agreement or otherwise.
7.6 Any amount set-off under Clause 7.5 is without prejudice to the rights of Electrix in any subsequent negotiations, arbitration, or litigation to seek to vary the amount set-off.
7.7 Electrix’s right to set-off shall be cumulative and in addition to any other rights and remedies which it may have at law or in equity.
7.8 For foreign currency payments, the Job Manager shall consult the Chief Financial Officer for valid Codex currencies. The Goods shall be paid in the currency specified in the Purchase Order. Invoices must be submitted for payment in the foreign currency, into the Supplier’s nominated bank account.
7.9 Any payment certified by Electrix as being payable to the Supplier, or any payment made to the Supplier, shall be provisional or on account only, and is not an admission of liability or an acknowledgement that the Goods (or any part thereof) have been provided in accordance with the Agreement.
8 – Examination of Site
8.1 In so far as it is necessary for the performance of this Agreement, the Supplier shall be deemed to have examined the Site and the Delivery Point and their surroundings, and to have fully satisfied itself of the relevant physical conditions of the Site and Delivery Point, the climatic conditions in the locality of the Site and Delivery Point, the nature of and access to the Site and Delivery Point and how they may be affected by prior, concurrent or subsequent work carried out by others, the nature, quality, extent and amount of labour, plant, materials, equipment, machinery, vehicles, tools, facilities, services and any other input required, and all other matters which can in any way affect the Delivery of the Goods.
8.2 The Supplier hereby acknowledges it has not and shall not rely on any information given, or statement made to it, by Electrix in respect of the condition or future condition of the Site or Delivery Point, other than as this is included in the Agreement or is otherwise provided in writing by Electrix.
9 – Safety and Performance
9.1 In the performance at the Site of its obligations under the Agreement, the Supplier shall take all practicable steps to prevent harm to people, property, process, or the environment and must comply with all applicable statutory and contractual obligations including, but not limited to, the Health and Safety at Work Act 2015 (“HSWA”).
9.2 The Supplier shall have in place and comply with a detailed and effective health and safety management plan, which is compliant with the HSWA and which sets out the Supplier’s proposed procedures for ensuring that work on Site under the Agreement is conducted safely. The Supplier shall, at all times, be able to produce proof of and comply with its health and safety management plan.
9.3 The Supplier shall comply with Electrix’s subcontractor health, safety, environmental and quality requirements, which can be supplied to the Supplier, upon request. This includes the requirement for the Supplier’s employees to undergo drug and alcohol testing.
9.4 The Supplier shall consult, cooperate, and coordinate activities with Electrix and all other persons who have a health and safety duty in relation to the same matter, in relation to any health and safety matters arising out of or in connection with providing the Goods.
9.5 The Supplier shall notify Electrix immediately of any new hazards or risks it identifies when providing the Goods.
9.6 Upon the occurrence of any hazardous, unsafe, unhealthy, or environmentally unsound condition or activity at the Site, Electrix may serve notice to that effect on the Supplier, requiring the Supplier to stop work and to abate or eliminate such condition or activity within the time stipulated in the notice, failing which Electrix may by itself or by its contractors or agents do the same at the cost of the Supplier. Any failure by Electrix to serve such notice shall not relieve the Supplier of its responsibility to otherwise abate or eliminate such conditions.
9.7 The Supplier undertakes to take all precautions and provide all protection to prevent damage, injury, or loss to:
a. Electrix, its personnel, and all other occupiers and users of the Site; and
b. All buildings, structures, fittings, fixtures, equipment, and other property at the Site and adjacent thereto including trees, shrubs, lawns, pavements, roadways, and utilities.
9.8 The Supplier shall be liable for all costs and expense incurred by Electrix to make good any damage caused by the Supplier, its employees, agents or Sub-suppliers to the Site or any other property and shall indemnify Electrix for any loss, injury or damage to any person or property caused by any act, default or negligence of the Supplier, its employees, agents, or Sub-suppliers.
9.9 The Supplier shall, at all times, keep the Site and the Premises clean and shall clear away and remove all surplus materials, rubbish and work of any kind as may be occasioned by the Suppliers’ performance of its obligations under the Agreement.
9.10 Within seven (7) days from the Completion Date or such other date as Electrix may direct, the Supplier shall remove all of its personnel, plant and equipment and surplus materials from the Site, and shall leave this and its environs clean and tidy.
9.11 For the avoidance of doubt and notwithstanding anything else contained in this Agreement, the Supplier has control of, and ultimate responsibility for, the health and safety of the Supplier’s employees, and the health and safety of others who may be affected by the activities of the Supplier in performing its obligations under the Agreement and nothing in this Agreement relieves the Supplier of this obligation.
9.12 Supplier of machinery, plant and equipment shall ensure compliance with applicable AS/NZS Standards and WorkSafe Guidelines for Safe Use of Machinery.
9.13 Compliance by the Supplier with the requirements of this Clause 9, shall be at the Supplier’s cost.
10 – Compliance with Laws
10.1 The Supplier shall at its own expense comply in all respects with the provisions of all applicable laws, statutes, regulations, or other enactment in respect of the manufacture, packaging, packing and Delivery of the Goods and the execution of work, and shall keep Electrix indemnified against all penalties and liabilities of any kind arising as a result of breach of any laws.
10.2 The Supplier shall, prior to the commencement of performance of the Agreement and, as and when necessary, at its own cost, obtain and maintain current all necessary approvals, consents, licences, permits and the like (together “Approvals”), which may be required for or in connection with any matter relating to or arising out of the Agreement and shall promptly deliver to Electrix, on demand, certified true copies of and documentary evidence of payment of all fees, duties and or impositions levied by the relevant authorities for, all such Approvals.
11 – Property
Subject always to Clause 18.13;
11.1 The property in any Goods shall pass to Electrix upon delivery at the Delivery Point, unless, and to the extent, payment for the Goods, whether in whole or in part, is made prior to delivery, when it shall pass to Electrix once such payment has been made.
11.2 The property in any Goods delivered to the Delivery Point shall re-vest in the Supplier to the extent that surplus Goods may be found to exist upon Completion and handing over of the Goods. All Goods delivered to the Delivery Point shall not be removed from the Delivery Point without the consent of Electrix, except that if the Goods are surplus to the requirements of the Agreement, the Supplier shall remove the same, upon the property in such surplus re-vesting in the Supplier.
11.3 The Supplier warrants that it has the right to sell, and that Electrix shall acquire good clear title to, all Goods, free of any encumbrance, including any interest or equity of any person or any mortgage, charge, pledge, lien or assignment or any other encumbrance, priority or security interest or arrangement of whatever nature over or in the relevant property, on the date when property in such Goods under the terms herein, passes to Electrix.
11.4 Electrix may require the Supplier to establish, to Electrix’s satisfaction, that the Supplier has or will, on the date for making the payment of any progress or instalment payment or on Delivery to the Delivery Point, have good clear title to and ownership of such Goods. If the Supplier fails to do so, Electrix may require the Supplier to provide additional security, in a form and substance acceptable to Electrix, prior to making any payment.
11.5 The Supplier shall ensure that any Goods, in which property has passed to Electrix, but which remain in the possession of the Supplier or its Sub-suppliers, are clearly marked and identified as Electrix’s property and are kept separate from other goods or property of the Supplier and any third party and are properly stored, protected and insured.
11.6 Electrix shall be entitled at any time, by its servants or agents, to require the Supplier to deliver to Electrix any such Goods in which property has passed and, if the Supplier fails to do so forthwith, to enter upon any premises of the Supplier or any third party where such Goods are stored and remove such Goods. The Supplier hereby irrevocably grants to Electrix and its authorised agents a licence to enter the Supplier’s premises for the purposes aforesaid and will procure that such third party will grant to Electrix a similar licence.
11.7 The Supplier warrants and undertakes with Electrix that it will not, in any contract with a Sub-supplier for the purchase or supply of goods or materials relating to the Goods, agree to or accept any condition providing for the Sub-supplier’s reservation of title or property in any Goods to be supplied by the Sub-supplier. If so, required by Electrix, the Supplier shall produce for Electrix’s inspection all Agreements (other than in respect to price) with Sub-supplier’s which relate to the Goods.
12 – Risk
12.1 Risk of damage to or loss of the Goods shall pass to Electrix upon acceptance of Delivery by Electrix in accordance with the Agreement.
12.2 The Goods, (whether located at the Site, the Premises or the premises of any third party) supplied by the Supplier or all goods or materials, if any, supplied by Electrix for the Supplier’s use, shall remain, until handing over of the completed Goods in accordance with the Agreement, at the risk of the Supplier, who shall make good, at its own expense and without payment, any accidental or other loss or damage thereto, howsoever caused (including theft or act of third parties) save only loss or damage caused by any wilful act of Electrix. The Supplier shall protect the Goods and shall insure the Goods and all goods and materials supplied by Electrix, unless otherwise expressly stated in the Agreement.
12.3 The plant, tools, equipment, or other property belonging to or provided by the Supplier, its servants agents, or Sub-suppliers, shall be at the sole risk of the Supplier and any loss or damage to the same or caused by the same shall, except for any loss or damage due to any wilful act of Electrix, be the sole liability of the Supplier, who shall indemnify Electrix against any loss, claim or proceedings in respect thereof.
13 – Insurance
13.1 The Supplier shall, at his own expense, keep in force during the entire period of performance of the Agreement, the following insurances:
a. Unless otherwise agreed, comprehensive public and products liability insurance in an amount not less than NZ$10million, to cover bodily injury or death and damage to property in respect of claims by third parties (with no limit on the number of claims during the period of insurance) with a combined single limit of liability to a value acceptable to Electrix per occurrence;
b. Contract works insurance or the like, of sufficient value to cover the performance of the Supplier’s obligations under the Agreement;
c. Where a motor vehicle is used in providing the Goods, third party insurance covering the Supplier’s motor vehicles;
d. Where there is a design component to the provision of the Goods, professional indemnity insurance, of sufficient value to cover the performance of the Supplier’s design obligations; and
e. Any other insurances which are reasonably required for the performance of the Supplier’s obligations under the Agreement.
13.2 As and when required to do so by Electrix, the Supplier shall produce for inspection by Electrix, documentary evidence that the insurances required by, or referred to in, the Agreement are properly affected and maintained, including, where required the relevant policy or policies and premium receipts.
13.3 The taking out of any insurance as herein provided, shall not relieve the Supplier of any of its obligations under the Agreement or at common law or pursuant to any statute, rule, regulation, or other enactment.
14 – Quality Inspection at Premises
14.1 The Supplier shall establish and maintain quality systems acceptable to Electrix. Unless otherwise shown in the Purchase Order, the Supplier’s quality systems shall comply with the current version of AS/NZS ISO 9001 (Quality management system – requirements).
14.2 Electrix and the Client shall be entitled, at any time during Supplier’s normal business hours, to make on-site visits to the Premises and to inspect and test any Goods during manufacture, processing or storage at the Premises and may inspect witness or expedite any tests carried out by the Supplier.
14.3 If, as a result of inspection or testing, Electrix is not satisfied that the Goods will comply in all respects with the Agreement and Electrix so informs the Supplier, the Supplier shall take such steps as are necessary to ensure compliance.
14.4 For the purposes of conducting any visits, inspections, or tests pursuant to this Clause 14, the Supplier shall and shall procure that its Sub-suppliers will, grant to Electrix and its authorised representatives (including the Client) full access to all Premises and provide all tools, testing equipment and personnel and render all necessary assistance, to Electrix or the Client.
14.5 The Supplier’s obligations to supply conforming Goods shall not, in any way, be affected by any inspection (including final inspection) or testing or attendance by Electrix or the Client at the Supplier’s testing or otherwise, or the issue of an inspection release (or the like) or failure on Electrix’s part to inspect or test.
14.6 Wherever it is practicable to do, so the Supplier shall, at the request of Electrix and at its own cost, furnish Electrix with any necessary supporting evidence or information confirming that the Goods, whether fixed or unfixed, comply with the requirements of the Agreement.
15 – Quality Inspection at Site
15.1 Electrix shall be entitled, at any time, to inspect and test any Goods during installation, commissioning or maintenance at the Site and may inspect, witness, or expedite any tests carried out by the Supplier at the Site.
15.2 Electrix may direct the opening up or inspection of any work covered up, or the carrying out of tests or investigations of any goods, materials or executed work, or the postponement of further work until, the results of the tests or investigations are known. If such Direction is reasonable and prudent in the circumstances, including (but not limited to) where there is evidence that some of the work has been, is, or is likely to be, defective, or there has been a breach of contract or negligence or omission on the part of the Supplier or any Sub-supplier, then, the Supplier shall comply with the Direction at its own expense, and shall not be entitled to an extension of the Date of Delivery, notwithstanding that there be no defective work or no further defective work or breaches of contract or negligence or omissions In other cases the Supplier shall be entitled to reasonable compensation for any additional expenditure resulting from compliance with such Directions, and to an appropriate extension of the Date of Delivery.
15.3 Without prejudice to any rights or remedies of Electrix, Electrix may direct the removal or demolition of any work, goods or materials which form part of the Goods, whether fixed or unfixed, which are not in accordance with the Agreement, and for their reconstruction or replacement, in exact accordance with the Agreement. Provided that Electrix may, but shall not be bound to, accept any work containing defects not remedied and without removal or replacement, in which event the provisions of Clause 20.3b. i shall apply.
15.4 No failure by Electrix to exercise any powers in this Clause 15 shall prejudice any subsequent claim by Electrix against the Supplier, at any time, in respect of work which is not in accordance with the Agreement.
16 – Packing, Marking and Despatch
16.1 A delivery docket or packing list must accompany each delivery or consignment of the Goods and must be displayed prominently. Unless otherwise specified in the Purchase Order or notified by Electrix, the delivery docket or packing list shall contain, as a minimum, the Purchase Order Number, Electrix’s name and the Supplier’s name.
16.2 Where it differs from, the quantity stated on the delivery docket, Electrix’s count shall be deemed to be final, conclusive, and binding on the Supplier.
16.3 All Goods shall be clearly marked, in accordance with applicable industry standards, regulations and the requirements of the carrier or shipper, if any, including the weight of the Goods.
16.4 The Supplier shall ensure that all Goods are adequately lubricated, packed, protected and secured, in accordance with industry standards, to prevent loss, damage or deterioration during transit to the Delivery Point, loading and unloading and temporary storage at Electrix’s premises or elsewhere, at any time, prior to installation and commissioning.
16.5 Large items or boxes shall be suitably lugged, battened, or packed, so as to permit loading and unloading using cranes and slings. The gross weights and preferred lifting points shall be clearly and conspicuously marked on each package.
16.6 Palleted items shall be adequately secured for loading and uploading using fork hoists.
16.7 Smaller items shall be packed in containers suitable for ease of handling, identification, and storage.
16.8 The Supplier shall bear the cost of any loss, damage or deterioration to the Goods arising from inadequate marking, packing or protection and indemnify Electrix against all loss damages costs and expenses suffered or incurred by Electrix, arising from such loss, damage, or deterioration.
17 – Variations
17.1 For the purposes of this Clause, “variation” shall mean any change to the Goods, including any change which:
a. Increases, decreases, or omits any part of the Goods;
b. Changes the character or quality of any of the Goods;
c. Changes the levels, lines, positions, or dimensions of any part of the Goods;
d. Changes the order in which work shall be carried out;
e. Accelerates the manufacture, delivery, installation, or commissioning, at the written Direction of Electrix; or
f. Demolishes or removes material, goods, or work, whether part of the Goods or otherwise.
17.2 Electrix may at any time direct variations to the Goods, and the Supplier shall promptly comply with such Direction.
17.3 Only changes to the Goods which are the subject of written confirmation from Electrix, may be considered variations.
17.4 Where the Supplier receives a written Direction from Electrix, which is not stated to be a variation but which the Supplier believes to be a variation, the Supplier shall forthwith so advise Electrix, before complying with that Direction. Should the Supplier fail to so advise Electrix, such Direction may be deemed by Electrix to not constitute a variation.
17.5 Where work is omitted under a variation, Electrix may, without incurring any obligation of cost or other liability to the Supplier, perform this work itself, or have the work carried out by others.
17.6 No variation, whether of addition or omission, shall vitiate the Agreement.
17.7 The value of all variations shall be determined as follows:
a. The schedule of rates or other method upon which the original Price was based (including any bills of quantity) which are set out in this Agreement, shall be used to determine the valuation of the same or similar work, executed under similar conditions to the work which is the subject of the variation.
b. Where the work, which is the subject of the variation, is not of a similar nature or executed under similar conditions, the value of the variation shall be the reasonable cost of the work or where this cannot be agreed with Electrix, a fair valuation of the work made by Electrix.
c. No overhead or profit shall be paid for any part of the Goods which is decreased or omitted
d. Where Electrix considers no other valuation method applies, Electrix may direct that the work be done;
i. At day work rates or the prices prevailing when such work is carried out (in each case, to be reasonably determined by Electrix); or
ii. At the reasonable additional costs to the Supplier for the work concerned, plus a reasonable percentage for overheads and profit, which percentage shall be agreed with Electrix and if not agreed, shall be reasonably determined by Electrix.
e. Written records, including daily timesheets and proof of any plant, equipment, materials etc employed or purchased to carry out variations under Clause 17.7d, must be provided to Electrix, no later than one working day after the associated work was executed. The provision of these records shall be a condition precedent to payment for the variation.
18 – Delivery and Progress
18.1 The Supplier shall always perform its obligations under the Agreement with diligence and in a competent and timely manner.
18.2 The Supplier shall commence work under the Agreement promptly upon receipt of the Purchase Order and continue with the work until Completion.
18.3 The Goods shall be ready for handing over to Electrix at the Delivery Point on the Date for Delivery, according to the delivery terms specified in the Purchase Order or within the period stated in the Purchase Order, in either case during Electrix’s usual business hours, subject to any extension of the period granted in accordance with Clause 18.8.
18.4 Where the Date for Delivery is to be specified after the placing of the Purchase Order, the Supplier shall give Electrix reasonable notice of the specified date, which date shall be consistent with Electrix’s programme requirements, as these may have been advised to the Supplier.
18.5 Within 14 days of the date of the Purchase Order or within any other time reasonably specified by Electrix, and if so, required by Electrix, the Supplier shall submit to Electrix two copies of the production programme for the Goods (the “Programme”). The Programme shall list all activities including, where applicable, engineering, procurement, manufacture, assembly, testing, preparation for shipment, delivery, installation, and commissioning, together with any other required activities, showing planned durations for each activity and their interrelationships. Significant milestones, including those upon which any agreed progress payments may be contingent, must be indicated on the Programme, together with the planned dates for the milestones.
18.6 At 14-day intervals after the date specified in 18.5, or as may be reasonably required by Electrix, the Supplier shall resubmit the Programme with actual progress clearly shown against each activity. The Programme shall be accompanied by a brief written report, detailing any deviations from planned activities, together with the remedial steps being taken by Supplier to ensure the Date for Delivery will be maintained.
18.7 Where Electrix so directs, a brief weekly report on production status and delivery forecast is required to be provided to Electrix.
18.8 The Date for Delivery may be extended by such time as may, in all the circumstances, be fair and reasonable, if work on the Goods is delayed in the following events:
a. Any wrongful or negligent act of default, or delay, or breach of this Agreement, by Electrix, its servant or agents;
b. Suspension of performance of the Agreement by Electrix pursuant to Clause 25; or
c. A force majeure in accordance with Clause 27.
and the Date for Delivery is unable to be achieved as a result.
18.9 As a condition precedent to such extension of the Date for Delivery, the Supplier shall as soon as such delay becomes apparent, forthwith give written notice of the cause and likely duration of delay to Electrix and provided also that the Supplier shall constantly use its best endeavors to prevent delay and shall do all that may reasonably be required by Electrix to proceed with the Goods. In the absence of such notice from the Supplier, Electrix may, at its sole discretion and in its own interests, grant such extensions of time as it may consider fair and reasonable.
18.10 If the Goods are to be delivered in installments, the Agreement will be treated as a single Agreement and not severable.
18.11 The Supplier shall supply Electrix, in good time, with information required to enable Electrix to accept delivery of the Goods and performance of any work on the Site.
18.12 Electrix may, at any time, by written notice, which is expressly identified as an acceleration Direction, direct the Supplier to accelerate the execution of the work. Unless the acceleration is necessitated by the failure of the Supplier to proceed with the work with diligence and a competent and timely manner or the Supplier otherwise causes progress of the work to be delayed (in which case the cost of such acceleration shall be to the Supplier’s account), Electrix shall pay the Supplier its direct reasonable costs (if any), directly attributable to the acceleration.
18.13 Notwithstanding any other provision of the Agreement, and as a fundamental condition hereof, at any time, and whether or not Electrix has terminated the Agreement, Electrix may, in writing, direct the Supplier to immediately release, and make available to Electrix, any of the Goods (whether completed or not), and do all things necessary to enable Electrix to remove such Goods from the Supplier’s (and Sub-supplier’s) places of work. The Supplier hereby grants to Electrix an irrevocable licence to enter upon the property of the Supplier to give effect to this provision and shall do all that is necessary to retrieve any Goods from its Sub-suppliers. The Supplier shall promptly thereafter, submit to Electrix a claim for payment in respect only to the Goods removed by Electrix, which claim shall be regarded as a claim made under Clause 7.1, and which shall be valued as though only that part of the work had been terminated pursuant to Clause 26. Property in the Goods shall be deemed to reside in Electrix upon the Direction being given to the Supplier to release the Goods. Any Goods not included in Electrix’s Direction, shall continue to be subject to the Agreement. Any failure of the Supplier to comply with this Clause 18.13 shall be a fundamental breach of the Agreement, and in the event that Electrix makes application to a court to enforce its rights under this Clause 18.13, this Clause 18.13 is agreed by the Supplier to constitute a complete bar and defence to any application, defence or counter claim that the Supplier may raise at such, or related, proceedings in challenge of such rights of Electrix. This Clause 18.13 shall survive the termination of the Agreement.
19 – Acceptance of Work
19.1 Electrix shall be entitled to reject any Goods delivered which are not in accordance with the Agreement and shall not be deemed to have accepted any Goods until Electrix has had a reasonable time to inspect them, following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent.
19.2 Electrix shall not be obliged to return to the Supplier any packaging or packing materials for the Goods, whether or not any Goods are accepted by Electrix.
20 – Goods Warranty
20.1 Save where otherwise expressly stated in the Agreement, the Supplier warrants to Electrix that all Goods will:
a. Be the best of their described kinds;
b. Be in exact conformity with any Specifications, Supplier Data, sample, or other agreed description;
c. Be new, fit, and free from defects in design, material, and workmanship;
d. Be of merchantable quality and fit for any purpose held out by Supplier or made known to Supplier in the Agreement, or which would be reasonably expected, including that they will function and operate satisfactorily in the environmental and climatic conditions to which they are to be exposed (including altitude, and operational conditions such as exposure to dust, atmospheric corrosion, corrosive chemicals and fluids and rough handling); and
e. Will comply with all statutory requirements and regulations of the countries in which the Goods are to be manufactured, installed executed, packaged, packed, delivered, sold, used, or operated.
20.2 The Supplier warrants to Electrix that the Goods will be manufactured (where applicable) and, where relevant, installed, by appropriately qualified and trained personnel, with due care, skill, and diligence and to the highest standard of quality.
20.3 Without prejudice to any other right or remedy available to Electrix, if any Goods are not supplied or performed in accordance with the Agreement, or a defect appears in the Goods (whether or not as a result of a breach of warranty under Clauses 20.1 and 20.2 or any other undertaking or condition or otherwise)(together “Defective Goods”), then Electrix shall be entitled:
a. To require the Supplier to repair or replace the Defective Goods within seven (7) days; or
b. At Electrix’s sole option and whether or not Electrix has previously required the Supplier to repair or replace the Defective Goods:
i. To accept the Defective Goods, and be entitled to recover from the Supplier, the greater of all damages, losses, costs, and expenses suffered or incurred by Electrix, as a result of such Goods being Defective Goods, or the benefit to the Supplier (including any Sub-supplier) of not having to rectify the Defective Goods, or
ii. Where the Supplier fails to repair or replace the Defective Goods, as required by Clause 20.3a, to treat the Agreement as repudiated by the Supplier and to either accept such repudiation or to treat the repudiation as a breach under Clause 26.
20.4 The Supplier shall be liable for all damages loss, costs and expense incurred or suffered by Electrix, and shall indemnify Electrix against all liabilities, damages, costs and other compensation awarded against or paid by Electrix, in connection with any third party claims arising out of or as a result of or in connection with breach of any warranty given by the Supplier in relation to the Goods or any non-compliance with the Agreement, and all legal or other expenses incurred by Electrix, in or about the defence or settlement of any such claims.
20.5 Repairs and replacements shall themselves be subject to the same warranties as contained in Clauses 20.1 and 20.2.
20.6 All express warranties of the Supplier set forth in the Agreement, are additional to any warranties or conditions implied by statute or common law.
20.7 It is expressly agreed by the Supplier, that the warranties given to Electrix by this Clause 20, together with any further warranties that may be provided to Electrix by the Supplier, shall simultaneously be for the benefit of the Client, who may call upon the Supplier to honour such warranties, whether or not this Agreement has been assigned or novated to the Client pursuant to Clause 28.
21 – Ethics and Compliance
21.1 The Supplier shall comply with Electrix’s ethics and compliance policies (see https://www.vinci.com/ or by request from Electrix), including the VINCI “Together” manifesto, its Ethics and Conduct Policy, its adherence to the ten (10) principles of the United Nations Global Compact, its Global performance commitments for VINCI suppliers, its subcontractor relations guideline, and its human rights guidelines (referred to as the “Guidelines”); all these documents collectively comprising “VINCI’s Values”.
21.2 The Supplier shall comply with all relevant legislation and regulations on ethics, including:
a. Complying with legislation and regulations on:
i. Human rights
iv. The environment
v. Modern Slavery
b. Implementing and maintaining its own appropriate policies and procedures regarding the legislation and regulations governing human rights, competition, corruption, and the environment.
c. Raising the awareness of its employees regarding the legislation and regulations governing human rights, competition, corruption, the environment, and Modern Slavery.
d. Checking and monitoring its own supply and subcontracting chains by requiring the same compliance, described in this Clause 21, from its own suppliers and secondary subcontractors, if any.
e. Immediately informing Electrix of any request, act or omission or event that is inconsistent with or counter to VINCI’s Values and legislative and regulatory provisions concerning any aspect of human rights, competition, corruption, the environment, and Modern Slavery.
21.3 The Supplier represents and warrants to Electrix that the Supplier shall:
a. not engage in Modern Slavery;
b. comply with all Laws and Legal Requirements relating to Modern Slavery;
c. develop, implement, and maintain policies and procedures to avoid engaging in Modern Slavery; and
d. notify Electrix forthwith upon becoming aware of any complaint or allegation that the Supplier has engaged in Modern Slavery.
21.4 The Supplier represents and warrants to Electrix that the Supplier is reducing its carbon footprint in accordance with the trajectory of maintaining the increase in global temperature at a maximum of two degrees, pursuant to the Paris Climate Agreement (https://www.vinci.com/vinci.nsf/en/press-releases/pages/20200115-1745.htm). In this respect, the Supplier shall communicate to Electrix at the time of acceptance of the Agreement or a Purchase Order and in a method and frequency agreed by Electrix, its energy and environmental performance, according to the following indicators (i) scope 3 upstream, and (ii) scope 3 downstream. The Supplier shall diligently provide this information to Electrix.
21.5 The Supplier shall not procure goods or services or otherwise trade with any of the parties listed in the World Bank’s list of ineligible firms and individuals (see http://www.worldbank.org/)
21.6 The Supplier hereby authorizes Electrix to reasonably carry out an audit on the Supplier’s sites, or to have one conducted by any third-party auditor, to verify compliance with the obligations stipulated in this Clause 21.
21.7 In the event of a breach of this Clause 21 by the Supplier, then in addition to the sanctions stipulated under Clauses 25 and 26, the Supplier shall indemnify Electrix against any penalties, fines, compensation, costs and/or expenditure and/or any other liabilities resulting from said breach.
22 – Confidentiality
22.1 In this Clause 22, “Confidential Information” shall mean that information that could reasonably be considered to be confidential to Electrix or any of its Clients, that is disclosed to or obtained by the Supplier, at any time prior to the date of the Purchase Order or during the course of performance of the Agreement, that relates to the existence of this Agreement, the supply of the Goods or which relates to Electrix’s past, present or future business and activities, or those of its Clients, including and all items prepared for or submitted to Electrix for the purposes of performance of the Agreement, including any Supplier Data or other Specification, drafts and associated materials and works carried out under the Agreement.
22.2 “Confidential Information” shall not include information that:
a. Is or becomes publicly available without breach of the Agreement or other legal obligations by the Supplier; or
b. Is released for disclosure with the prior written consent of Electrix.
22.3 The Supplier undertakes not to divulge or communicate to any person, firm or company any Confidential Information without the prior written consent of Electrix except to employees, agents or Sub-suppliers of the Supplier, who are engaged in the performance of the Agreement and (if requested by Electrix) have signed a confidentiality undertaking having the same effect as the provisions contained in this Clause 22, and then only to the extent necessary for the performance of the Agreement.
22.4 The Supplier shall take all reasonable precautions in dealing with any Confidential Information so as to prevent any unauthorised person from having access to such Confidential Information.
22.5 If so, required by Electrix, the Supplier shall, with delivery of the Goods, at its own expense, simultaneously deliver up to Electrix, all documents, papers and property containing any Confidential Information which may be in the possession or under the control of the Supplier, its employees, agents, or Sub-suppliers. The Supplier shall immediately destroy such information which it is not able to deliver to Electrix.
22.6 The Supplier shall not disclose the existence of the Agreement or mention Electrix’s name or that of the Client, in any publicity or to any other party, without Electrix’s prior written consent.
22.7 The provisions of this Clause 22 shall survive the termination or expiry of this Agreement for any reason.
23 – Indemnity
23.1 The Supplier hereby indemnifies and saves harmless Electrix from and against all liabilities, loss, damages, costs, and expenses (including legal expenses on an indemnity basis) awarded against or paid or suffered or incurred by Electrix arising out of or as a result of or in connection with any breach of duty or negligence, or any act or omission, of the Supplier, its employees, agents, or Sub-suppliers in connection with the performance of the Agreement.
24 – Termination for Convenience
24.1 Electrix shall be entitled, at any time prior to Delivery of the Goods, to cancel the Agreement in respect of all or any part of the Goods, by giving notice in writing, to the Supplier. Upon receipt of such notice, the Supplier shall immediately cease to incur expenses in respect of the Agreement or the part thereof which has been cancelled.
24.2 The Supplier shall take all steps to mitigate the cost to Electrix of such cancellation and the provisions of Clause 18.13 shall apply. Upon such cancellation, Electrix’s sole liability shall be to pay to the Supplier (after allowing for any previous payment):
a. The value of the Goods delivered to Electrix at the Delivery Point;
b. Where there is no ready market for the Goods, the value of any Goods manufactured but not delivered at the date of such determination; and
c. Where there is no ready market for the unfixed goods or materials for incorporation in the Goods, the value of any unfixed goods and materials (wherever located) properly ordered for which the Supplier has already paid or of which it is legally bound to pay.
24.3 On payment by Electrix for any Goods, the property in such Goods so paid, if it has not already passed to Electrix, shall pass to Electrix.
24.4 Where there is a ready market for any Goods, the Supplier shall not be entitled to any payment, therefore, save for its reasonable costs of handling and any bona-fide short-fall in recovering its reasonable costs of the Goods, whether or not property has passed to Electrix. If property has passed to Electrix, property shall re-vest in the Supplier and (if the Goods are in the possession or custody of Electrix), Electrix shall re-deliver the same to the Supplier at Electrix’s premises.
24.5 The Supplier shall not be entitled to any payment for any Goods, under Clause 24.2, unless they are in all respects in accordance with the Agreement. The Supplier shall not be entitled to any loss of profit on the remaining parts of the Goods or to any other compensation.
25 – Suspension
25.1 Electrix shall be entitled, at any time, to suspend performance of the Agreement in respect of all or any part of the Goods, by giving notice in writing to the Supplier. Upon receipt of such notice, the Supplier shall immediately cease to incur expenses in respect of the Agreement or the part thereof the performance of which has been suspended. The Supplier shall take all steps to mitigate costs to Electrix of such suspension.
25.2 The Supplier shall immediately resume performance of the Agreement upon notice in writing from Electrix to the Supplier to do so.
25.3 The Supplier shall not be entitled to any additional payment or any adjustment to the Price arising from any such suspension, unless the requirement for such suspension was caused solely by Electrix, in which case the Supplier shall be entitled to be reimbursed its reasonable direct costs directly attributable to the suspension.
25.4 The Date for Delivery may be extended by the period of the suspension, provided the Supplier takes all reasonable steps to avoid or reduce such extension.
25.5 The Date for Delivery may not be extended if the suspension was due to any act or omission of the Supplier, its servants or agents or Sub-suppliers.
25.6 It shall be a condition precedent to the granting by Electrix of an extension to the Date for Delivery or any additional payment or any adjustment to the Price, arising from any suspension under this Clause 25, that the Supplier shall, within fourteen (14) days of date of receipt of notice to resume performance, notifies Electrix, in writing, of any claim for extension of time and/or costs, together with a full statement of the reasons to justify such claim. Any claims made otherwise will be considered invalid.
26 – Termination for Default
26.1 Electrix shall be entitled to terminate the Agreement forthwith by giving notice to the Supplier at any time if:
a. The Supplier ceases, or threatens to cease, to carry on business, becomes bankrupt or makes a composition or arrangement with its creditors or having a proposal in respect of its company for a voluntary arrangement for having a composition of debts or scheme or arrangement approved by, or having an application made in respect of its company to, the court for the appointment of an administrator, or having a winding up order made (except for the purposes of amalgamation or reconstruction) or a resolution for voluntary winding up passed or having a provisional liquidator, receiver or manager of its business or undertaking duly appointed, or having an administrative receiver appointed, or having possession taken, by or on behalf of the holders of any debentures secured by a floating charge of any property comprised in or subject to the floating charge, or Electrix reasonably apprehends that any of the events mentioned above is about to occur in relation to the Supplier and notifies the Supplier accordingly (in any of the events aforesaid, the Supplier shall be deemed to be in breach of Agreement); or
b. The Supplier commits a breach of any of its obligations under the Agreement.
26.2 In the case of a breach referred to in Clause 26.1b , other than a breach in respect to on-Site safety, in which case Electrix may terminate the Agreement without notice, Electrix shall not be entitled to terminate the Agreement, unless it has served on the Supplier a notice advising of the breach and allowing the Supplier not less than seven (7) days in which to remedy the breach or otherwise show good cause why Electrix should not terminate the Agreement, and the Supplier fails to do so.
26.3 Upon termination for breach, the Supplier shall be liable for all damages, loss, costs and expense which may be suffered or incurred by Electrix arising out of such termination and shall indemnify Electrix against all liabilities, damages, costs and other compensation awarded against or paid by Electrix in connection with any third party claims and all legal expenses and costs incurred by Electrix in the defence or settlement of any such claims, arising out of, or as a result of, or in connection with, such termination. Electrix’s only liability to the Supplier, subject to Electrix’s right of set-off, shall be to make payment of (or allow as credit) the Price of all Goods delivered or handed over to Electrix in accordance with the Agreement.
27 – Force Majeure
27.1 If either party to the Agreement is prevented or delayed in the performance of any of its obligations under the Agreement by a force majeure, and provided that such party has given written notice thereof to the other party specifying the matters constituting the force majeure, together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue, then such party shall be excused from the performance or the punctual performance, as the case may be, as from the date of such notice for so long as such cause of prevention or delay shall continue.
27.2 For the purpose of Clause 27.1, “force majeure” shall be deemed to be any cause affecting the performance of the Agreement arising from or attributable to causes which are not reasonably foreseeable and beyond the reasonable control of the party affected and without limiting the generality thereof shall include the following:
a. Strikes, lock-outs or other industrial actions (excluding strikes by the Supplier’s or its Sub-suppliers’ employees);
b. Civil commotion, riot, invasion, war threat or preparation for war;
c. Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural physical disaster;
d. Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; or
e. Political interference with the normal operations of any party, provided always that the Supplier shall not be excused from performance, where alternate sources of supply of Goods or goods or materials for incorporation into the Goods are available.
27.3 If the force majeure in question prevails for a continuous period in excess of one month, the parties shall enter into bona fide discussions with a view to alleviating the force majeure’s effects or to agreeing upon such alternative arrangements as may be fair and reasonable, provided that either party may terminate the Agreement (insofar as it is affected by the force majeure) if no such alleviation or alternative can be agreed.
28 – Assignment or Subletting
28.1 The Supplier shall not assign or sub-let the performance of the Agreement (or any part thereof) without the prior written consent of Electrix. The Supplier shall, at all times, be responsible to Electrix, for the acts or omissions of any assignee or Sub-supplier. When requested, an unpriced copy of the Supplier’s contracts with an approved Sub-supplier shall be furnished to Electrix, promptly after receipt of Electrix’s consent.
28.2 The Supplier accepts that Electrix may be entering into the Agreement for and on behalf of the Client (whether or not made known to the Supplier). Electrix may freely assign or novate all its rights and obligations under the Agreement to any such Client. The Supplier hereby irrevocably consents to any such assignment or novation in the form required by such Client and to the release of Electrix upon any such assignment or novation, of all further obligations under the Agreement and agrees to execute any instrument or other document to give effect to any such assignment or novation and release.
28.3 Electrix may, upon written notice to the Supplier and without its consent, assign all or any part of its rights and benefits hereunder or transfer all or any part of its obligations hereunder to a related corporation, who upon receiving such an assignment or transfer will thereafter be liable solely for the performance of the obligations hereunder.
29 – Lien
29.1 The Supplier hereby waives any and all rights of lien against any of the Goods or any work of which the Goods form part or the Site (or part thereof) to the fullest extent consistent with the law. In the event an employee of the Supplier, or a Sub-supplier or a worker employed by them, institutes action to place such a lien, the Supplier will take whatever action is necessary to avoid the lien being registered or to have the lien removed forthwith (as the case may be), and shall indemnify Electrix against costs, losses, or damages whatsoever, that Electrix may suffer as a result of the registration or proposed registration, of such a lien.
30 – Property Supplied by Electrix
30.1 Any tools, tooling, drawings, plans, papers, documents, tape, diskettes, materials, and other property supplied by Electrix for use by the Supplier shall be identified and shall remain the property of Electrix and shall be used by the Supplier only for the purpose of the performance of the Agreement. The Supplier shall ensure that any such property is clearly marked and identified as Electrix’s property and kept separate from other property of the Supplier or any third party and properly stored and protected.
30.2 All property supplied by Electrix shall be delivered to Electrix forthwith upon Electrix’s request, to a destination specified by Electrix, in its original condition, except for normal wear and tear.
31 – Dispute Resolution
31.1 Any dispute, controversy or difference (“Dispute”) of any kind whatsoever between Electrix and the Supplier, arising out of or in connection with the Agreement (including the validity or enforceability of the Agreement or any part thereof) or the performance of either party’s obligations under the Agreement, shall arise (whether before, during or after the delivery of the Goods and whether before or after suspension, termination or breach of the Agreement), shall be resolved in the following manner:
a. Both parties shall, in the first instance, use reasonable endeavours to resolve the Dispute in an amicable manner and in good faith, within fourteen (14) days of either party informing the other party that they consider there is a Dispute between the parties.
b. Should the parties fail to resolve the Dispute under Clause 31.1b, each party shall designate a senior manager, as its representative to negotiate and settle the dispute within a further fourteen (14) days.
c. If the dispute is not resolved within the time specified under Clause 31.1b, or within such longer period as the designated senior managers may agree, then within a further fourteen (14) days, either party may request that the dispute to be resolved through mediation, with a mediator agreed by both parties or, failing agreement of a mediator within fourteen (14) days, a mediator appointed by the President of the Arbitrators’ and Mediators’ Institute of New Zealand (or their nominee), by giving written notice to the other party. The mediator shall review the matter with the parties and endeavour to resolve it by their agreement. All discussions in meditation shall be without prejudice and may not be referred to in any later proceedings. Each party shall bear their own costs for the mediation and shall equally share the costs of the mediation. The parties may, at any point, agree to ask that the mediator resolve the dispute. In this case, the mediator’s decision shall be binding on both parties unless, within fourteen (14) days, either party notifies the other, in writing, that it rejects the mediator’s determination.
d. If the dispute remains unresolved after the provisions of Clauses 31.1a to 31.1c have been followed or neither party requests or consents to mediation in accordance with Clause 31.1c, then either party may refer the dispute to arbitration, by giving written notice to the other party, within fourteen (14) days.
e. Reference to arbitration under this Clause 31 shall be deemed to be a reference to arbitration in New Zealand within the meaning of the Arbitration Act 1996. The arbitration shall be effected:
i. By a sole arbitrator agreed upon in writing by the parties within twenty-one (21) days of referring the dispute to arbitration; or
ii. In the absence of agreement under Clause 31.1ei, a sole arbitrator appointed by the President of the Arbitrators’ and Mediators’ Institute of New Zealand (or their nominee), upon the application of either party.
f. The place of arbitration shall be Auckland.
g. The award in the arbitration shall be final and binding on the parties
31.2 The parties expressly and irrevocably agree that any statutory proportionate liability regimes that may otherwise apply, are, to the maximum extent permitted, hereby excluded from operation in respect to any dispute, claim, action, or matter whatsoever arising in connection with the Agreement.
31.3 Notwithstanding the existence of a claim or dispute, the parties must continue to perform their respective obligations under this Agreement.
31.4 Where, in Electrix’s opinion, the Dispute requires Electrix to initiate a claim against or a dispute with the Client and Electrix intends to pursue that claim or dispute, through arbitration or otherwise, Electrix shall give notice to the Supplier of its intention to pursue the matter. If such cases, the following shall apply:
a. The Supplier shall give Electrix all reasonable assistance in the prosecution of Electrix’s claim or dispute and shall make available its relevant personnel and all relevant information, documents and evidence within its possession or control.
b. Electrix shall prosecute its claim or dispute with due diligence.
c. The Supplier shall be bound by the findings of fact and by the decision or decisions made in respect of Electrix’s claim or dispute, to the extent that the claim or dispute involves any issue or issues which are the same or substantially the same as issues which are relevant to the Dispute, and the Dispute shall be determined in a manner consistent with all such findings and decisions.
d. The Supplier shall indemnify Electrix to the extent of the Supplier’s interest in respect of the claim or dispute, against all costs and expenses reasonably incurred by Electrix by reason of the operation of this Clause 31.
e. The Supplier shall lodge with Electrix reasonable cash or other security against the costs and expenses referred to in 31.4d. Any monies Electrix may recover shall be to the benefit of the Supplier, to the extent of the Supplier’s valid and proportionate interest in the claim or dispute, save that Electrix shall be entitled to withhold from any such moneys, an amount representing Electrix’s unrecovered costs of conducting the claim.
32 – General
32.1 This Agreement constitutes the entire agreement between Supplier and Electrix, as at the date of acceptance by the Supplier set out in Clause 2 and supersedes any request for quotation, the Supplier’s quotation, all negotiations and/or previous agreements, either written or oral, with respect to the subject of this Agreement, made prior to the date of acceptance of the Agreement, other than as these have been expressly incorporated into the Agreement.
32.2 If any provision of the Agreement is, is deemed to be or becomes, void, unenforceable, severed, or illegal, the remaining portions of the Agreement shall continue to have full force and effect.
32.3 No approval or consent of Electrix shall relieve the Supplier of any liability arising out of or in any way connected with the performance of its obligations under the Agreement.
32.4 Except as provided at law or in equity or elsewhere in the Agreement, none of the terms of the Agreement shall be varied, waived, discharged, or released except with the written consent of the parties, which shall not be continuing unless expressed to do so and further shall not constitute a variation, waiver, discharge, or release of any other term.
32.5 A failure by Electrix to enforce or exercise any rights conferred upon it under the Agreement or at law shall not be deemed to be a waiver of any such rights (unless made in writing by Electrix) or operate so as to bar the exercise or enforcement thereof at any subsequent time or times. No waiver in respect of any breach of the Supplier shall operate as a waiver in respect of any subsequent breach.
32.6 The rights and remedies hereby conferred shall be cumulative and in addition to any and all other rights and remedies now or hereafter existing at law or in equity.
32.7 The termination or cessation otherwise of the Agreement, howsoever caused, shall be without prejudice to any obligations or rights of either party which have accrued prior to such termination or cessation and shall not affect any provision of the Agreement which is expressly or by implication provided to come into effect on or to continue in effect after such termination or cessation.
32.8 For the purposes of the Agreement, the Supplier is an independent contractor and not an agent or employee of Electrix.
32.9 The Agreement shall be governed by and construed in all respects in accordance with the laws (and be subject to the courts) of New Zealand.
32.10 All documents, correspondence, drawings, and data relating to the Agreement or any Dispute are to be in the English language.
End of Terms and Conditions
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