WATSON-MARLOW LIMITED- PURCHASING TERMS AND CONDITIONS
1. ACCEPTANCE. These Purchasing Terms and Conditions (Conditions) apply to and shall be readtogether with the enclosed purchase order (Purchase Order) (as if each were incorporated into thesame document) between you (Seller) and Watson-Marlow Limited, a company incorporated in NewZealand under company number 2500720 (Buyer). This Purchase Order is to be accepted in writingby Seller by signing this Purchase Order and returning promptly to Buyer the signed copy, but if forany reason Seller should fail to sign and return to Buyer the signed copy, the commencement of anywork or performance of any services hereunder by Seller shall constitute acceptance by Seller of thisPurchase Order and all its terms and conditions. A quotation by the Seller does not constitute an offerto supply and no Purchase Order will be binding on the parties unless the Purchase Order is signedby the Buyer. Acceptance of this Purchase Order is hereby expressly limited to the terms hereof.Any variations to this Purchase Order and the Conditions by Seller shall constitute a counter offer,which is not binding on Buyer unless such variations are agreed to by Buyer in writing. This PurchaseOrder and the Conditions constitute the entire agreement between Buyer and Seller. Selleracknowledges that it has not relied on any statement, promise or representation made or given by oron behalf of the buyer that is not set out herein.
2. PRICES. Prices stated in this Purchase Order apply to all shipments made or services renderedhereunder. Buyer shall have no obligation to honour invoices for the goods or services at anyincreased price until such increase shall have been confirmed in writing by Buyer. Unless otherwisespecified, price is to cover net weight of material ordered hereunder and no charges will be allowedfor boxing, crating, carting or storage. Seller will provide Buyer with a valid tax invoice with theacceptance of each Purchase Order.
3. DELIVERY. The obligation of Seller to meet the delivery dates, specifications, packing requirementsand quantities, as set forth herein is of the essence of this Purchase Order. Deliveries are to bemade both in quantities and at times specified herein, or if no such quantities or times are specified,pursuant to Buyer’s written instructions. If Seller’s deliveries fail to meet schedule, Buyer withoutlimiting its other rights or remedies, may direct expedited routing and any excess costs incurredthereby shall be debited to Seller. Buyer may in accordance with paragraph 11 hereof cancel all orpart of this order in the event Seller fails to deliver goods as scheduled herein. Buyer shall not beliable for Seller’s commitments or production arrangements in excess of the amount, or in advance ofthe time necessary to meet Buyer’s delivery schedule. Seller shall not deliver goods in advance ofthe scheduled delivery. Goods which are delivered in advance of schedule are delivered at the risk ofSeller and may, at Buyer’s option, (a) be returned to Seller at Seller’s expense for proper delivery, (b)have payment therefor withheld by Buyer until the date that goods are actually scheduled for delivery,or (c) be placed in storage for Seller’s account until delivery date specified herein. Except asotherwise provided herein, title and risk of loss on all goods supplied to Buyer hereunder shall pass toBuyer upon delivery to Buyer at the place of delivery defined in this Purchase Order or at the locationotherwise agreed by the parties.
4. BLANKET PURCHASE ORDERS. Where this contract is for purchase and sale of a stated quantity,Buyer shall not be obligated to purchase any additional quantity. In the case of blanket purchaseorders,
(a) Seller agrees to furnish Buyer’s requirements for the goods or services covered by thisPurchase Order to the extent of and in accordance with the delivery schedule set forth therein, or ifno such schedule is set forth, then pursuant to Buyer’s written instructions
(b) Buyer shall have noobligation to honour invoices for goods or services fabricated, rendered, or delivered other thanaccording to the delivery schedule or written instructions of Buyer pursuant to (a) above, and (c)Buyer shall be entitled to make other purchases at its discretion in order to assure its productionoperations and maintain reasonable alternative sources of supply.
5. PRICES AND TAXES. Unless otherwise stated, all prices quoted are firm during the term of theorder. Unless otherwise indicated, the prices set forth in this Purchase Order do not includeapplicable taxes. All such taxes shall be stated separately on Seller’s invoice. The prices statedherein do not, nor will any invoice of Seller, include any tax with respect to which an exemption isavailable or is indicated by Buyer hereon or otherwise, or any other tax with respect to which Buyerhas furnished Seller an exemption certificate. The Seller agrees to pay any and all personal propertyad valorem, or good and services, taxes assessed or otherwise levied against any property placed inthe hands of the Seller by the Buyer for the purpose of fulfilling this Purchase Order. In case it shallever be determined that any tax included in the prices herein was not required to be paid by Seller,Seller agrees to notify Buyer and to make prompt application for the refund thereof, and to take allsteps to procure the same and when received to pay the same, including interest, if any, to Buyer.
6. INSPECTION. The goods and all parts, material and workmanship entering into the performance ofthis Purchase Order shall be subject to inspection, test and count by Buyer at any time or place in thediscretion of the Buyer whether during or after manufacture. If any goods are defective in materialsor workmanship or otherwise not in conformity with the requirements of this Purchase Order, Buyer,in addition to its other rights contained herein or at law, may reject the goods for full refund of thepurchase price or may re-work goods at Seller’s expense or require prompt correction or replacementof the goods at Seller’s expense, including transportation charges. Nothing herein shall relieve Sellerof the obligation to make full and adequate testing and inspection of goods sold under this PurchaseOrder. If Buyer notifies Seller of any type of defect in the goods, Seller shall perform a root causeanalysis (RCA) on the quality issues and report the result of such RCA within four (4) weeks of thenotice of the defect. In addition, upon receiving notice of the defect, Seller shall take immediate actionto ensure the quality issues are contained and no further defective goods are shipped to Buyer, andshall confirm completion of such actions to Buyer within 24 hours of the notice of the defect. In theevent that this Purchase Order covers the acquisition of capital equipment, or goods and servicesrelated thereto, Buyer reserves the right to make final inspection and acceptance of such equipment,or related goods and services, at the point of final installation designated on the face of this order.Final payment for such equipment, or related goods and services, in full, or in part if specificallyprovided for herein, shall be made only upon Buyer’s final inspection and acceptance. Buyer retainsthe right to periodic and reasonable audits of Seller’s premises, books, records, and other documentsas necessary to confirm Seller’s compliance with the terms of this agreement.
(a) Seller warrants that all goods or services ordered or provided hereunder will be free of allclaims, liens and encumbrances and will conform in all respects with the specifications,drawings, samples, or quality control or other procedure or description whether furnished bySeller or provided by Buyer, and will be merchantable and free from any defects in materials,design, and workmanship; and Seller further warrants that where Seller has providedapplicable specifications, all material purchased hereunder shall be manufactured inaccordance with the Seller’s specifications. Seller warrants that where Seller has designedthe goods, the goods shall be fit and sufficient for the purposes for the goods were intended.Seller agrees that the foregoing warranty shall survive acceptance of and payment for thematerial, and that Seller shall save Buyer harmless from any loss, damage or expensewhatsoever, including legal fees that the Buyer may incur as a result of any breach of suchwarranties. These warranties shall survive delivery and inspection of all or a part of the goodsor services. All warranties provided under this Purchase Order shall be valid for 12 monthsfrom the date of delivery. In the event that Seller provides repairs or replacement goods, thewarranties in this Purchase Order shall apply and will be valid for 12 months from the datesuch repairs or replacement goods are provided.
(b) Seller warrants that if Buyer returns any goods within the warranty period (as set out above)where such goods are defective as to material, design or workmanship or as to compliancewith all Seller’s and/or Buyer’s applicable specifications or otherwise, Seller shall:
(i) give notice to Buyer that such goods are defective as to material or workmanship or asto compliance with the relevant specifications for the goods; and
(ii) following notice thereof to Buyer.
(aa) with respect to goods that have been manufactured by Seller, make good thedefect without charge by (at Buyer’s option), repairing the defective goods,replacing defective components of the defective goods, replacing the defectivegoods (in their entirety) or refunding the full purchase price of the defectivegoods as Buyer’s discretion considers appropriate; or
(bb) with respect to goods which have been supplied, but not manufactured by Sellerand to the extent Seller is entitled to do so, make good the defect withoutcharge by (at Buyer’s option) repairing the defective goods, replacing defectivecomponents of the defective, refunding the defective goods or assigning and/orusing its reasonable endeavors otherwise to make available to Buyer, thebenefit of any obligations and warranties which relate to such defect whichSeller may be owed by the manufacturer and/or supplier of goods or any part orcomponent thereof.
(a) All payments are made conditional upon acceptance by the Buyer of the goods called forunder this Purchase Order.
(b) To the extent new materials or goods have been identified for production by Seller to fillBuyer’s purchase, Buyer shall have a lien for payments made under this Purchase Orderterms until goods are delivered.
(c) Invoices for tools, if Tooling (as that term is defined in paragraph 23 herein) is expresslycovered by this Purchase Order, will not be honoured until production pieces are approved bythe Buyer’s inspection department.
(d) Discount period, if any, begins the date invoice or material is received by Buyer, whichever islater.
9. CHANGE ORDERS. The Buyer may at any time, by a written order, make changes within thegeneral scope of this order, to any one or more of the following:
(a) applicable drawing, designs, or specifications;
(b) method of shipment or packing;
(c) place of delivery; and
(d) material, methods or manner of production, or final product.In cases where change orders are issued, if any such change causes an increase or decrease in thecost of or the time required for performance of this order, an equitable adjustment shall be made inthe order price or delivery schedule or both, and order shall be modified in writing accordingly. Anyclaim by the Seller for adjustment hereunder must be in writing and asserted within 20 days from thedate of receipt by the Seller of the notification of change, provided however, that such period may beextended upon the written approval of the Buyer. However, nothing in this clause shall excuse theSeller from the order as charged or modified.
10. SUBSTITUTIONS; EXTRAS. No substitutions of materials or accessories may be made withoutBuyer’s written consent. No charges for extras will be allowed unless such extras have been orderedin writing by Buyer.
(a) The Buyer may terminate all or any part of this order, without liability to the Seller, by writtennotice of default on the occurrence of a Default Event (as that term is defined in paragraph13), or if Seller fails to perform its obligations under this order as specified, or so fails to giveadequate assurance of performance.In the event of Seller’s default or apparent inability to perform this order, Seller agrees upon demandby Buyer to deliver to Buyer the raw materials and work in process acquired in order to perform underthis order, and Buyer may then complete the work deducting the cost of such completion from theprice, or in the alternative, pay to Seller the reasonable cost of such raw material and work inprocess.
12. EXCUSABLE DELAYS. It shall not be deemed a default hereunder and neither Buyer nor Sellershall be liable for a failure to perform hereunder arising from causes or events beyond the reasonablecontrol and without the fault or negligence of Buyer or Seller in failing to perform hereunder. Suchcauses or events include but are not limited to strikes, lock-outs or other industrial disputes (whetherinvolving the workforce of the Buyer or any other party), failure of a utility service or transportnetwork, act of God, epidemic or pandemic, war, riot, terrorism, civil commotion, malicious damage,compliance with any law or governmental order, rule, regulation or direction, accident, breakdown ofplant or machinery, fire, flood, storm, default of suppliers or subcontractors. Seller agrees that insuch circumstances, where possible delays in the performance of this Purchase Order result, Buyershall have the option exercisable by written notice to vest title in itself to tools, finished parts, rawmaterials, or work in process, and Seller will upon request from Buyer deliver any and all Tooling,finished parts, raw materials, or work in process associated with this Purchase Order to Buyer at anypoint outside Seller’s plant, and Buyer will make an equitable payment to Seller for such. Despite theforegoing, where any such delay occurs and continues for more than 90 days, a party may by noticein writing terminate this Purchase Order immediately. In these circumstances, neither party will beliable to the other party for any failure to perform, or delay in performing, their obligations hereunder.
13. DEFAULT AND INDEMNITY.
(a) For the purposes of this Purchase Order a “Default Event” shall be one or more of thefollowing:
(i) any default or breach by Seller under this Purchase Order including a failure todeliver the goods;
(ii) Seller becomes insolvent, is adjudicated bankrupt, or otherwise unable to pay itsdebts as they fall due;
(iii) Seller ceases or threatens to cease to carry on its business;
(iv) a receiver, liquidator, official assignee, administrator or statutory manager of Selleror the Seller’s assets is appointed;
(v) Seller enters into any composition or arrangement with its creditors;
(vi) Seller fails to pay any judgment of any court which is not stayed within five workingdays of the judgment;
(vii) a change in the effective control and/or management of Seller; or
(viii) any other event which in the sole discretion of Buyer gives rise to concern as to thetimely delivery of the goods.
(b) If a Default Event occurs, Buyer, without prejudice to any other rights and remedies it hasherein, at law or in equity may, at any time thereafter, suspend or terminate this PurchaseOrder, and payment for the any goods not delivered and any money owing by Seller toBuyer shall immediately become due and payable.
(c) Any suspension of this Purchase Order by Buyer shall not prevent Buyer from terminatingthis Purchase Order during the period of suspension.
(d) Buyer will not be liable to Seller for any loss or damage Seller suffers because Buyerexercises any rights, powers or remedies after the occurrence of a Default Event, includingunder this clause 13.
(e) All costs, claims, proceedings, damages and expenses of or incurred by Buyer as a resultof any such action contemplated by this clause 13 together with transportation, storagecharges and legal costs (as between solicitor and own client) shall be payable by Sellerupon demand.
(f) Buyer is given and may exercise all or any of the rights and remedies referred to hereinwithout prejudice to any other rights and remedies that may be available to it, and no failureor neglect to act or pursue any right or remedy available to Buyer in any way prejudice itsright to exercise that or any right or remedy.
(g) Notwithstanding the passing of time since the Default Event, Buyer can invoke theprovisions of this clause 13 at any time.
14. SUBCONTRACTING. No subcontracting shall be made by the Seller with any other party forfurnishing any of the completed or substantially completed articles, spare parts, or work hereincontracted for, without the prior written approval of the Buyer.WAT3.001_004.DOC
15. PATENTS, ROYALTIES AND ENCUMBRANCES. All goods and services supplied must be freefrom liability of royalties, infringement of intellectual property rights and mechanic’s liens or otherencumbrances, and Seller hereby waives any right it or its subcontractor may have now or in thefuture to any mechanic’s lien or other encumbrance with respect to the goods and services suppliedhereunder. Seller warrants that the goods specified in this Purchase Order and their sale or usealone, or in combination according to Seller’s specifications or recommendations, if any, will notinfringe any domestic or foreign patents, copyrights or marks. Seller agrees to indemnify and holdharmless Buyer and anyone selling or using any of Buyer’s products against all judgments, decrees,costs and expenses resulting from any alleged infringement as aforesaid, and Seller further agreesthat, upon request of Buyer and at Seller’s own expense, Seller will defend or assist in the defense ofany of Buyer’s products by reason of any such alleged infringement or obtain a license to obtain useof same on terms acceptable to Buyer.
16. LICENSE. The Seller, as part consideration for this Purchase Order and without further cost toBuyer, hereby grants and agrees to grant to Buyer an irrevocable, non-exclusive, royalty-free rightand license to use, sell, manufacture and cause to be manufactured products embodying any and allinventions and discoveries made, conceived or actually reduced to practice in connection with theperformance of this Purchase Order, and Seller hereby grants to Buyer a license to repair, rebuild orrelocate and have repaired, rebuilt or relocated the goods, purchased by Buyer under this PurchaseOrder.
17. BUYER’S PROTECTION IN CONNECTION WITH WORK DONE AT ITS OR A CUSTOMER’SPLANT. If this Purchase Order provides for the Seller to render services, including without limitationdelivery services, temporary labour, and subcontractor work, whether performed at Buyer’s plant orthe plant of a customer of Buyer or otherwise, Seller agrees that such services are to be rendered bySeller as an independent contract; and that Seller will indemnify and save harmless Buyer or suchcustomer as the case may be, its officers, directors, shareholders, employees and agents, from anyand all liability and expense (including legal fees and other litigation or settlement expense) withrespect to any and all claims for bodily injury or death or property loss or damage arising out of orattributable to the faulty performance of this Purchase Order by Seller, its employees, agents orcontractors. In the event Buyer’s machinery and/or equipment or machinery and/or equipment of anysuch customer of Buyer is used by Seller in the performance of the work called for by this PurchaseOrder, such machinery and/or equipment shall be considered as performance of the work called forby this Purchase Order, such machinery and/or equipment shall be considered as being under solecustody and control of the Seller during the period of such use by Seller, and should any person orpersons in the employ of Buyer or any such customer be used to operate said machinery and/orequipment during the period of such use, such person or persons shall be deemed during suchperiod of operation to be an employee, or employees of Seller. Upon the request of Buyer or suchcustomer, Seller shall furnish Buyer or such customer at Seller’s expense such fidelity andperformance bonds as Buyer or such customer may reasonably specify, evidence that Seller hasadequate public liability and property damage insurance in amounts and with companies acceptableto Buyer or such customer and evidence that Seller has made adequate provisions for satisfyingapplicable employment or labour laws or regulations of any jurisdiction lawfully requiring same.
18. COMPLIANCE WITH LAWS. The Seller warrants that no law, rule, regulation or ordinance of all andany country in which Seller operates or has its goods or services available for purchase or any othergovernment agency has been violated in the manufacture or sale of the items or in the performanceof services covered by this order and will indemnify and hold the Buyer harmless from loss, cost ordamages as a result of any such violation. Seller must comply with the requirements of the UnitedKingdom Bribery Act 2010 (the “Act”) and shall not engage in any activity, practice or conduct whichwould constitute an offence under sections 1, 2, or 6 of the Act if such activity, practice or conducthad been carried out in the United Kingdom. Additionally, Seller shall comply, and shall ensurecompliance of any party with which it subcontracts complies, with the requirements of the UnitedKingdom Modern Slavery Act (2015), including ensuring that all forms of forced labour are eliminatedfrom its business.
19. SAFETY AND HEALTH REGULATIONS. Seller represents and certifies to Buyer that any and allservices performed and any goods delivered under this Purchase Order shall comply with allrequirements of any applicable health or safety statute or regulation of any government or regulatorybody having jurisdiction in the location from or to which such items are to be shipped or at which suchwork is to be performed pursuant to this Purchase Order. Seller agrees to indemnify and holdharmless Buyer against any claims, losses, damages, fines, penalties, costs and expenses assessedagainst or incurred by Buyer as a result of Seller’s failure to comply with such statutes or regulations,and with all rules, standards, or orders issued thereunder, and for the failure of the goods or servicesfurnished under this Purchase Order to so comply.
20. ETHICS. The Seller warrants that its directors, employees, agents and other representatives havenot and will not, directly or indirectly, offer, promise, give, accept or agree to receive a bribe, corruptpayment or any article of financial value whether for the benefit of any public official, Buyer, itsemployees and agents or any other person. Seller will immediately report to Buyer any actual orattempted breach of this clause by an employee or agent of Buyer and any such action of acceptanceof any such solicitation is a material breach of every contract between Buyer and Seller. Seller shallact in a manner that ensures
i) all forms of illegal, forced or compulsory labour, slavery and servitudeare eliminated;
ii) no individual is induced through force, threats, or deception to provide services orbenefits of any kind to another or to enable another to acquire benefits of any kind; and
iii) noindividuals or groups are involved in the Trafficking of humans. “Trafficking” means recruiting,transporting, transferring, harbouring, receiving, transferring or exchanging control, or otherwisearranging or facilitating travel of any individual that is travelling with a view to being exploited throughany type of forced or compulsory labour or slavery or servitude.
21. NON-DISCLOSURE OF CONFIDENTIAL MATTER. Materials purchased hereunder with Buyer’sspecifications or drawings shall not be quoted for sale to others without Buyer’s prior writtenauthorisation. Such specifications, drawings, samples or any other data furnished by the Buyer orany other information gained by Seller in connection with this Purchase Order shall be treated asconfidential information by Seller, shall remain Buyer’s property, and shall be returned to it onrequest.
22. ASSIGNMENT. No right or obligation under this Purchase Order, including the right to receivemoneys due and to become due hereunder, shall be assigned by Seller, the effect of which alters orcompromises Buyer’s rights to assert an offset claim against assignee, without the prior writtenconsent of Buyer, and any purported assignment without such consent shall be void.
23. TOOLING. Unless otherwise agreed to in writing, all materials, drawings, tools, dies, jigs, gauges,fixtures, patterns, molds, testing apparatus, machinery and equipment, together with all othermanufacturing aids (Tooling) used in the manufacture of the articles, materials, supplies, facilities orservices ordered hereunder shall be furnished by and at the expense of the Seller. In the event anyTooling (including Tooling, if any, purchased hereunder) is furnished by Buyer at its expense or isfurnished by Seller and the cost thereof paid by Buyer, such Tooling shall be and remain Buyer’s soleproperty and for Buyer’s sole use and shall be subject to removal at any time at the option of theBuyer. Seller agrees, at its expense, to maintain in commercially usable condition and in good orderand repair, appropriately identify mark where necessary, inventory, preserve and not to encumber,lien or pledge and to store all Buyer owned items of Tooling referred to in this paragraph 23 for suchperiod of time after performance or termination of this Purchase Order as may be mutually agreedupon by Buyer and Seller. Any and all items of Tooling which are Buyer’s sole property shall at anyreasonable time be subject to inspection and examination by Buyer. Seller shall not substitute anyproperty for Buyer’s property and shall not use said property except in filling Buyer’s purchase orders.Such property, while in Seller’s custody and control, shall be held at Seller’s risk, and shall be keptinsured by Seller at Seller’s expense in an amount equal to the replacement cost with loss payable tothe Buyer, and shall be subject to removal at Buyer’s written request, in which event Seller shallproperly prepare such property for shipment and shall deliver the same to Buyer in accordance withthe shipping instructions in this Purchase Order or as otherwise agreed by the parties in the samecondition as originally received by Seller, reasonable wear and tear excepted.
24. NOTICE OF LABOUR DISPUTES. Whenever an actual or potential labour dispute is delaying orthreatens to delay the timely performance of this order, Seller will immediately notify the Buyer ofsuch dispute and furnish all relevant details. Seller will include a provision identical to the above ineach sub-contract (as applicable) hereunder and immediately upon receipt of any such notice pass iton to the Buyer.
25. NOTICES.(a) For the purposes of this clause 25, a Business Day shall mean a day (other than aSaturday, Sunday or public holiday) when banks in Auckland (NZ) are open for business.(b) Any notice required to be in writing can be given by way of personal delivery, post, facsimileor email, and will be deemed to be received unless the contrary is proven:(i) in the case of personal delivery, at the time of delivery;(ii) in the case of a letter where the country of origin and the country of destination arethe same, on the third Business Day after posting the letter by pre-paid mail;(iii) in the case of a letter where the country of origin and the country of destination aredifferent, on the tenth Business Day after posting the letter by pre-paid mail;(iv) in the case of a facsimile, at the time of successful transmission; and(v) in the case of an email, at the time it is sent.(c) However, despite the foregoing, if receipt is after 5pm on a Business Bay or any time on anon-Business Day, then it is deemed to have been received at 9am on the next BusinessDay.
26. GOVERNING LAW AND JURISDICTION. The construction, validity and performance of thisPurchase Order shall be governed by the law of New Zealand and, without prejudice to the right ofthe Buyer to take action against the Seller in any other court of competent jurisdiction, any claim ordispute arising from this Purchase Order shall be subject to the exclusive jurisdiction of and bedetermined by the courts of New Zealand.Agreed and signed by a duly authorised representative of Seller:
Signature: ………………………….Date:……………..……………For and on behalf of (Name of Seller): ……………………………………..…………………