1         Application

1.1         These terms (Terms) form part of the purchase order to which they are attached or referenced within (Purchase Order), unless there is a separate written agreement signed by both parties that excludes these Terms.  If there is such an agreement and it does not expressly exclude these Terms, both these Terms and the terms of that Agreement form part of the Purchase Order, and the agreement prevails to the extent of any inconsistency.

1.2         This Purchase Order is an offer by the Meteorological Service of New Zealand Limited (MetService) to the supplier named in the Purchase Order (Supplier) to purchase the goods or services set out in the Purchase Order (Products) on the terms set out in the Purchase Order and these Terms.  The Supplier’s acceptance occurs on the earlier of:

a             MetService’s receipt of verbal or written communication from the Supplier that the Supplier accepts the Purchase Order;

b            the Supplier issuing an invoice for the Products; or

c             the Supplier supplying the Products.

1.3         If the Purchase Order is not accepted as set out above in clause 1.2, the Purchase Order will expire 14 days after issue.  MetService may cancel the Purchase Order at any time before the Supplier accepts it in whole or in part.

1.4         MetService will not accept responsibility for any order unless it is issued on a signed Purchase Order, and any variation to the Purchase Order must be approved by MetService in writing.

1.5         Any variation to these Terms must be in writing and signed by both MetService and the Supplier.  These Terms will apply to the exclusion of any other terms or conditions appearing on any document issued by the Supplier.

2          Delivery, risk and title

2.1         The Supplier will deliver the Products on or before the delivery date agreed between the parties (Delivery Date) with a delivery note that includes a description of the Products and the purchase order number in accordance with the delivery procedure as set out in the Purchase Order or otherwise advised by MetService.

2.2         The Supplier must notify MetService as soon as possible of any likely delay.  If any of the Products are:

a             not delivered within 3 weeks of the Delivery Date; or

b            likely to be delayed by 3 weeks or more,

MetService may, without limiting its other rights and remedies:

c             immediately terminate the Purchase Order without liability by notice to the Supplier; or

d            direct the Supplier to make an expedited shipment of additional or replacement products, with the cost to be paid by the Supplier.

2.3         If any opportunity to materially expedite delivery arises, the Supplier will notify MetService of this opportunity and the associated costs.  Except to the extent clause 2.2c applies, if MetService requests the Supplier to effect any expedited delivery, MetService will pay the associated costs as so notified to MetService by the Supplier.

2.4         All Products must be packaged in accordance with any requirements set out in the Purchase Order.  If no packaging requirements are specified in the Purchase Order, the Supplier must package the Products in safe and suitable packaging which meets accepted industry practice.

2.5         Risk of loss, damage or deterioration to the Products from any cause will remain with the Supplier until delivery to MetService at its nominated address.  Title to the Products will pass to MetService on the earlier of payment for the Products and delivery in accordance with clause 2.1.

2.6         All international consignments of Products must be consigned through MetService’s appointed freight forwarding agents as notified by MetService to the Supplier from time to time.

3          Acceptance

3.1         MetService’s acceptance of delivery is not acceptance of the Products.  No acceptance will occur until MetService has had a reasonable opportunity to inspect and accept the Products.  Acceptance of partial deliveries is at MetService’s discretion.

3.2         Representatives of MetService are permitted to inspect Products ordered at any stage of manufacture.  MetService reserves the right to reject any Product found to be defective or inferior in quality.

4          Price and payment

4.1         MetService will pay the price (including any cost of delivery) set out in the Purchase Order (Price) for the Products, plus GST or any other sales, value-added or similar taxes (if any) (Sales Taxes).  The Price is the total amount MetService is obliged to pay for the Products and includes all packaging, insurance, export and import clearance, tarrifs, customs, duties and taxes and other costs.

4.2         Subject to clause 4.3, MetService will pay the invoice amount on the 20th of the month following receipt of a valid Sales Tax invoice.

4.3         If MetService notifies the Supplier of a genuine dispute about all or any amount of a Sales Tax invoice, MetService may withhold payment of the disputed amount until the dispute is resolved.  MetService will pay any undisputed amount in accordance with clause 4.2.

4.4         MetService will not accept any charge for packing, freight, insurance or any other charge for transit related expenses, unless explicitly authorised by the Purchase Order.

5          Performance standards and warranties

5.1         The Supplier warrants that the Products will:

a             be free from all liens, claims or encumbrances;

b            comply with all applicable laws, regulations, bylaws, standards and codes of practice;

c             comply with any description, sample, drawings or specification for the Products;

d            be new, free from all defects in material and workmanship, of merchantable quality and fit for the purpose contemplated by the Purchase Order; and

e             comply with all relevant requirements in the Purchase Order.

5.2         The warranties as set out in clause 5.1 are additional to any other warranties given by the Supplier or implied by custom or law.

6          Non-conforming Products

6.1         In addition to any other rights and remedies MetService may have under these Terms or by law, if in MetService’s reasonable opinion any Product fails to comply with the Purchase Order or any other requirement in these Terms, MetService may, by giving written notice to the Supplier:

a             reject the Product or require the Supplier to repair the Product;

b            withhold all or part of the Price until the non-compliance is remedied; and/or

c             deduct an amount (in MetService’s opinion, acting reasonably) from the Price to reflect the non-compliance.

6.2         Any rejected Products may be returned by MetService at the cost of the Supplier and the Supplier will, at the option of MetService, either:

a             immediately credit the price paid for the Products by MetService; or

b            promptly replace the Products. 

7          Intellectual property

7.1         The Supplier acknowledges that MetService will at all times retain all intellectual property rights in any designs, drawings, specifications or other document furnished by MetService or developed by the Supplier in connection with the Purchase Order (MetService IP).  The Supplier may use MetService IP solely in the production of the Products for MetService.

7.2         The Supplier warrants that the Products, and the possession and/or use of them by MetService, does not and will not infringe upon or violate any intellectual property rights of any third party.

7.3         The Supplier must ensure that MetService has all necessary rights (including third party licences) for MetService to receive the full benefit of the Products.

7.4         Without limiting clause 7.3, for any Products that are, or contain, software that is not otherwise licensed to MetService in writing, the Supplier grants to MetService, or must obtain for MetService, a worldwide, fully paid-up, irrevocable licence to use, modify, resell or otherwise exploit the software as MetService requires to use the Products for its lawful business purposes.

8          Confidentiality

8.1         The Supplier agrees that, unless it has the prior written consent of MetService, it will keep confidential at all times any information that is not public knowledge and which is obtained directly or indirectly from MetService in the course of, or in connection with, the Purchase Order (Confidential Information).

8.2         The Supplier must, at the request of MetService, promptly return to MetService or destroy all MetService Confidential Information in the Supplier’s possession or control, provided that the Supplier may retain Confidential Information that it is legally required to retain, but only to the extent of that legal requirement.

9          Liability

9.1         MetService’s liability to the Supplier under these Terms is limited to the Price payable for the Products.

9.2         Subject to clauses 9.6 and 9.7, under no circumstances will either party be liable to the Supplier for any:

a             loss of profits, loss of revenue, loss of use, loss of contract or loss of goodwill; or

b            indirect, consequential or incidental loss or damage.

9.3         The Supplier indemnifies MetService against any claim, loss or damage (including actual legal costs) MetService suffers as a result of the Products infringing any third party intellectual property rights.

9.4         Clauses 9.1 and 9.2 do not apply to limit MetService’s liability to pay the Price for the Products.

9.5         Clause 9.2 does not apply to limit the Supplier’s liability:

a             under the indemnity in clause 9.3; or

b            for breach of clause 8.

9.6         Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.

9.7         Each party must take reasonable steps to mitigate any loss or damage, cost, or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms.

10       Termination

10.1      MetService may terminate the Purchase Order immediately at any time by giving written notice to the Supplier if the Supplier:

a             breaches any material provision of these Terms; or

b            becomes, or threatens to become, insolvent or bankrupt, has a receiver appointed over all or some of its assets, is the subject of any similar action or administration, ceases to continue business or trading for any reason, or a resolution is passed for the liquidation of the Supplier.

10.2      Termination of the Purchase Order will not operate as a waiver of any breach of these Terms and will be without prejudice to any rights, liabilities or obligations of either party which have accrued up to the date of termination.

11       General

11.1      The Products may be for the use of or re-sale by MetService and may be incorporated in any products.  In no event will the Supplier have any claim for royalties or other additional compensation by reason of such use, incorporation, re-sale or manufacture.

11.2      The Supplier must not use the name or trade marks of MetService except with the prior written consent of MetService.

11.3      The Supplier must not assign or transfer the benefit or burden of the Purchase Order without first obtaining MetService’s written consent.

11.4      Each term in these Terms is separately binding.  If for any reason either party cannot rely on any term then all the other terms remain binding.

11.5      The Supplier must not subcontract all or any part of its obligations under the Purchase Order without the prior written approval of MetService.  The Supplier will remain liable to MetService for the performance of all obligations that have been subcontracted.

11.6      Subject to clause 1.1, the Purchase Order and these Terms set out everything agreed in relation to their subject matter and supersede and cancel anything discussed, exchanged or agreed prior to the date of the Purchase Order. 

11.7      Any waiver must be in writing and signed by the waiving party. 

11.8      Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by an event that is beyond that party’s reasonable control.

11.9      The parties are independent contracting parties.  No other relationship (e.g. joint venture, agency, trust or partnership) exists.

11.10   These Terms and the Purchase Order are governed by and construed in accordance with New Zealand law.  The parties submit to the non-exclusive jurisdiction of the courts of New Zealand in relation to all disputes arising out of or in connection with these Terms or the Purchase Order.

Purchase order terms updated 1 December 2020.