Acceptance Criteria means the functional, performance and/or other quality criteria that the Supply must meet in order to pass the Acceptance Tests;
Acceptance Tests means any specific tests and verification processes to be performed in respect of the Supply, as described in an Order;
Agreement means this agreement, including any Order;
Business Day means any day other than a Saturday, Sunday, or a statutory public holiday in a) Auckland, or b) where the WM Site Address specified in an Order is outside of Auckland also the relevant provincial anniversary date;
Change of Control means, in relation to a person (the "first person"), where a person acquires Control of the first person or where a person who Controls the first person ceases to do so;
Control means in relation to a person (the "first person"), the ability of another person (the "second person") to ensure that the activities and business of the first person are conducted in accordance with the wishes of the second person, whether through ownership of voting shares, contract or otherwise. Without limitation, the direct or indirect beneficial ownership of more than 50% of the voting rights in a body corporate is deemed to constitute Control;
Charges means the amounts payable by WM to the Supplier in respect of the Supply under this Agreement;
Commencement Date means the date specified for this Agreement to commence;
Defects Liability Period means the defects liability period specified in an Order;
Disabling Code means any program code or programming instructions, or any device, which may damage, interfere with, impair or otherwise adversely affect a party's operations, prevent or hinder access to any program or Information, or enable unauthorised access to any program or Information, impair or disrupt the operation of any program or the reliability of any Information (whether by rearranging, altering or erasing the program or Information in whole or part or otherwise), including malicious code, trojan horses, worms, spyware, malware, computer viruses, logic bombs, backdoors and other similar things;
Existing Material means, in respect of any party, all documentation, software and other materials used or provided by the party under or in connection with this Agreement that are:
(a) owned by, or licensed to, that party prior to the date of this Agreement; or
(b) developed independently from this Agreement by that party, and that are not developed, commissioned or created under or in connection with this Agreement;
Expiry Date means the date specified for this Agreement to end, subject to the provisions of clause 29.13;
Force Majeure Event means in relation to either party ("Affected Party"), an event or circumstance which:
(a) prevents the Affected Party from performing the whole or part of its obligations under this Agreement;
(b) is beyond the reasonable control of the Affected Party (including acts of God, acts of public enemy, or declared or undeclared war or threat of war, a terrorist act, blockade, revolution, riot, insurrection, civil commotion or public demonstration (other than one caused by the Affected Party) and not arising from that Affected Party's fault or insolvency; and
c) could not have been avoided by the Affected Party taking reasonable precautions, or overcome by the Affected Party taking reasonable steps to remedy or mitigate the event or circumstance, but which shall not include strikes, lock-outs or any other form of labour dispute or any other form of delay caused by contractual or labour relations between the Supplier and any of its employees, agents, subcontractors or suppliers, or inability to perform due to lack of funds;
Good Industry Practice means exercising reasonable skill, diligence, care and foresight expected of a skilled and experienced person in New Zealand in the same or similar circumstances;
Goods means the goods (if any) described in an Order or which otherwise form part of the Supply;
GST means goods and services tax charged or chargeable under the Goods and Services Tax Act 1985;
HSWA means the Health and Safety at Work Act 2015;
Intellectual Property Rights means in respect of any person, all intellectual and industrial property rights and interests (including common law rights and interests) owned or held by that person, or lawfully used by that person, whether or not registered, including:
(a) copyright, trademarks, service marks, symbols, logos, formulae, methods, plans, data, drawings, specifications, characteristics, equipment, designs, patents, semiconductor or circuit layout rights, trade, business or company names, domain names, inventions, discoveries, improvements, rights in software or databases, trade secrets, price lists, costings, brochures, ideas, concepts, know-how, experience, software products, business processes, methodologies and tools, and all other proprietary rights or information used by that person;
(b) applications for, and rights to, the protection or registration of any of the rights and interests in subclause (a) above; and
(c) equivalent or similar rights and interests and forms of protection anywhere in the world,
and Intellectual Property has a corresponding meaning;
Loss means any direct loss, liability, costs (including full legal costs on a solicitor-client basis) or expense incurred by WM and/or, where applicable, any of the Indemnified Parties (as defined in clause 17.1) in connection with this Agreement;
Order means an order by WM for a Supply, comprising any initial Order and subsequent Order WM may place, under this Agreement;
Privacy Laws means all applicable New Zealand laws in relation to:
(a) data protection;
(b) privacy;
(c) restrictions on, or requirements in respect of, the processing of personal information of any kind; and
(d) actions required to be taken in respect of unauthorised or accidental access to or use or disclosure of personal information,
and shall include the Privacy Act 2020 and any relevant code under that Act, and any applicable guidance issued by the Office of the Privacy Commissioner from time to time;
Representative of a party means a director, authorised officer, employee or agent of a party;
Service Levels means the availability, response time, quality or other performance standards of service associated with the provision of the Supply against which the Supplier's performance may be measured, as reasonably expected in accordance with Good Industry Practice or as may be more particularly specified in this Agreement in an Order under Performance Management Framework;
Services means the services (if any) described in an Order , or which otherwise form part of the Supply;
Specifications means any technical or other requirement, specification or drawing relating to the Goods and/or Services referred to in an Order or otherwise communicated by WM.
2.1 In this Agreement, unless the context otherwise requires:
(a) references to clauses and other headings are for ease of reference only and do not affect the interpretation of this Agreement;
(b) the singular includes the plural and vice versa;
(c) references to individuals include companies and other corporations and vice versa;
(d) a reference to a statute or other law includes regulations and other instruments under it, as well as consolidations, amendments, re-enactments or replacements of any of them (whether before or after the date of this Agreement);
(e) reference to any document includes reference to that document (and, where applicable, any of its provisions) as amended, novated, supplemented, or replaced from time to time;
(f) a reference to a party, person or entity includes:
(i) an individual, firm, company, trust, partnership, joint venture, association, corporation, body corporate, estate, state, government or any agency thereof, municipal or local authority and any other entity, whether incorporated or not (in each case whether or not having a separate legal personality); and
(ii) an employee, agent, successor, permitted assign, executor, administrator and other representative of such party, person, entity;
(g) references to money are to New Zealand dollars (and unless otherwise specified, include GST if applicable);
(h) references to times of day or dates are to New Zealand times and dates;
(i) reference to a day or date falling on a day which is not a Business Day will fall on the next Business Day;
(j) the words "include", "included" and "including" and similar words are to be construed without limitation; and
(k) in respect of performance of the Supplier's obligations under this Agreement, time is of the essence.
3.1 This Agreement shall commence on the Commencement Date and continue until the Expiry Date, unless terminated earlier in accordance with the provisions of this Agreement.
4.1 The Supplier shall provide the Goods and/or Services at the price(s) set out in the Agreement and in accordance with the other terms of this Agreement (including to any Specifications provided).
4.2 WM may provide the Supplier with indicative forecasts of its goods and services requirements. Such indicative forecasts shall be for the Supplier’s convenience only and shall not be construed as an Order.
4.3 Except as expressly provided for in an Order, WM is not required to:
(a) purchase any goods and/or services from the Supplier; or
(b) incur any minimum dollar spend with the Supplier.
4.4 If a minimum stock number is specified then the Supplier shall hold in stock the minimum number of each product specified.
4.5 Nothing in this Agreement shall constitute an exclusive arrangement between the parties.
5.1 The Charges payable for the Supply are as set out in the Agreement. Any additional costs which are not specified in this Agreement or an Order will be deemed included in the Charges.
5.2 Charges include all taxes, duties, levies, charges or other amounts payable to any government authority (including GST) unless stated otherwise.
5.3 The Supplier will invoice WM for the Charges in respect of the Supply within 30 days after the Supplier providing such Goods and Services to WM. In addition to any other information specified in the Order, each invoice must:
(a) be sent directly WM via email to the Accounts Payable email address specified; and
(b) include all information reasonably required to enable WM to validate the claim for payment, including the following information:
(i) Purchase Order Number;
(ii) Item Number;
(iii) Description of Goods or Services;
(iv) Sizes;
(v) Quantities;
(vi) Weight;
(vii) Unit Prices;
(viii) GST payable; and
(ix) Extended Totals,
all as applicable.
5.4 Subject to clause 5.5, payment for Goods and/or Services supplied by the Supplier to WM will be made by the last Business Day of the month following the month in which WM received a correctly rendered invoice containing the relevant "taxable supply information" pursuant to the requirements of the Goods and Services Tax Act 1985 and the information specified in clause 5.3.
5.5 WM may deduct or set off from any amount payable to the Supplier under this Agreement any amount payable by the Supplier to WM under this Agreement.
5.6 WM shall promptly notify the Supplier if it disputes all or any portion of an invoice. WM is not liable to pay the disputed portion of the invoice until the dispute has been resolved in accordance with clause 25. WM will pay the undisputed portion of any invoice. The Supplier will continue to perform all its obligations under this Agreement while an invoice is disputed.
5.7 If an Order specifies that Retentions apply, then WM is entitled to retain from invoices due payable such amount of retention monies specified in the relevant Order, for the period so specified. Upon satisfaction of the retention condition(s) specified in the relevant Order WM will remit the retention monies at same time and in the same manner as the next invoice payable by WM to the Supplier or otherwise without any unreasonable delay.
5.8 The Charges are valid for 12 months from the Commencement Date. After that period, the Charges may, on an annual basis, be reviewed by the parties, and any further detail required by WM will be provided by the Supplier. Any changes to the Charges will only take effect once they are agreed and signed by both parties.
6.1 The Supply must be received by WM on the milestones and/or dates and at the destination as specified in the relevant Order, or if no milestones and/or dates are specified then reasonably promptly having regard to Good Industry Practice.
6.2 The Supplier shall proceed diligently and expeditiously to provide the Goods and or carry out the Services ordered, and shall be responsible for any delays. If it becomes apparent to the Supplier that there will be any delay, it shall:
(a) provide full details of the delay to WM in writing and seek consent from WM to an extension of time for the Supply of the relevant Goods and/or Services; and
(b) at its own cost, take all reasonable steps available to it to avoid and minimise the effects of the delay.
6.3 Where an Order relates to the Supply of any Goods, the Supplier shall ensure such Goods are:
(a) manufactured, packaged, labelled, transported and handled safely and in accordance with all applicable standards;
(b) packaged and stored in a manner and in an environment that protects and maximises the serviceable life of the Goods;
(c) transported to the destination specified in the relevant Order in compliance with applicable import regulations; and
(d) transported in containers and packaging that are clean and are free from biosecurity hazards.
6.4 If the Supplier fails to comply with the requirements of clauses 6.1 and 6.2, WM may, without limiting its other rights and remedies and at its sole discretion, appoint a third party supplier to remedy the deficiencies, and WM will be entitled to recover from the Supplier any costs relating to such third party supplier's rectification of the deficiencies.
7.1 Title in Goods will pass to WM on the date for payment of the relevant invoice.
7.2 The Supplier bears all risk of loss and damage to the Goods until acceptance by WM in accordance with clause 8.
8.1 Subject to clause 8.5, notwithstanding any prior inspections, usage or payments, all Goods and Services shall be subject to:
(a) final inspection by WM which may include measurement, Acceptance Tests or examination; and
(b) acceptance by WM within the timeframe specified as the Acceptance Period for an Order, or if not so specified then a reasonable time (but not more than 90 days) after receipt of the Supply if WM has not provided notice pursuant to clause 8.5.
8.2 If an Order specifies that Acceptance Tests are to be carried out, then:
(a) the Acceptance Tests will be undertaken on the Goods and/or Services by WM or the Supplier as specified in the relevant Order to ensure the Goods and/or Services meet the relevant Acceptance Criteria; and
(b) if WM is undertaking the Acceptance Tests, the Supplier will give WM such information and assistance as WM reasonably requires in relation to undertaking those Acceptance Tests.
8.3 Subject to clause 8.5, acceptance of the Goods and/or Services by WM will occur:
(a) on the date upon which WM notifies the Supplier in writing of acceptance; or
(b) automatically upon the lapsing of the Acceptance Period or 90-day period stipulated in clause 8.1(b) if WM has not provided notice pursuant to clause 8.5.
8.4 WM's acceptance does not waive any rights that it may have relating to the supply of Goods and/or Services.
8.5 Where the Goods and/or Services are not accepted by WM, WM will give notice to the Supplier and clause 12 will apply.
9.1 The Supplier warrants that:
(a) all information supplied to WM under this Agreement, and its representations to WM under this Agreement are complete and accurate, not misleading or deceptive, and may be relied on by WM in entering into and continuing with this Agreement;
(b) all advice provided by the Supplier to WM in connection with the Goods and/or Services is provided to a high standard of skill, care and diligence, and to a level reflective of, and in accordance with, Good Industry Practice;
(c) all documentation provided by the Supplier under or in connection with this Agreement will:
(i) contain sufficient information for the full and efficient use, possession, installation, maintenance and/or modification of the relevant aspect of the Goods and/or Services to which the documentation relates;
(ii) correctly represent the attributes of the subject matter to which it relates;
(iii) provide proper and adequate instructions and information for its intended purpose; and
(iv) be written or delivered in the English language and at a level appropriate for the intended audience; and
(d) ownership of, and title to, the Goods and/or Services will transfer to WM in accordance with this Agreement, free and clear of encumbrances.
9.2 The Supplier warrants that the Goods and/or Services:
(a) are safe;
(b) are complete and free from design errors, defects or faults that are material and may inhibit the Goods and/or Services ability to function and are more than cosmetic;
(c) are of merchantable quality;
(d) include appropriate and correct warnings and instructions;
(e) are fit for their respective purposes as required by WM;
(f) comply with any representations, descriptions, samples or other specifications (including the Specifications), including quality, function, performance or design; and
(g) will be provided in accordance with Good Industry Practice.
9.3 The Supplier shall pass onto WM or, if it is unable to do so, use its best endeavours to hold for the benefit of WM, all warranties provided by third parties in respect of the Goods and/or Services provided by the Supplier under this Agreement and enforce those warranties without delay when requested by WM without charge.
9.4 The Supplier warrants that to WM that:
(a) the Supplier has all requisite ownership rights and licences to fully perform its obligations under this Agreement, and to grant all rights under this Agreement, free and clear of any and all encumbrances; and
(b) WM's purchase, use, possession, installation, maintenance and/or modification of any of the Goods and/or Services (or any aspect of any Goods and/or Services), and the use by WM of any Intellectual Property Rights licensed and provided by the Supplier in accordance with this Agreement, will not infringe or impair any third-party Intellectual Property Rights (or other proprietary rights or interests).
9.5 The Supplier indemnifies WM against any Loss incurred by WM concerning a breach of warranty, representation or term of this Agreement.
10.1 The Supplier shall comply with WM's Supplier Code of Conduct.
10.2 The Supplier shall:
(a) provide all labour, materials, services, equipment and plant required for the provision of the Goods and/or Services unless stated otherwise in the relevant Order;
(b) shall be responsible for the care, safety, protection, security, maintenance, repair, reinstatement and clean-up after use, of any materials, plant and equipment used in the performance of the Goods and/or Services; and
(c) ensure any materials, plant and equipment used in the performance of the Goods and/or Services is in sound condition and complies with all relevant statutory requirements and recommended industry guidelines.
10.3 The Supplier shall, at its own cost, seek, obtain and maintain all necessary approvals, licences, permits and/or consents (including building consent) required for the supply of the Goods and/or Services and otherwise perform its obligations under this Agreement.
10.4 All materials used by the Supplier shall be new (unless otherwise agreed by WM) and must be of satisfactory quality, reasonably suitable for their purpose and in accordance with any Specification supplied.
10.5 In performing its obligations under this Agreement, the Supplier must comply with all applicable laws and regulations, including without limitation environmental laws and the HSWA.
10.6 Where the Goods and/or Services are being delivered to or performed at WM's site and/or premises, the Supplier shall:
(a) ensure that during and at completion of the Services, WM's site is left in a clean, safe and tidy condition and all surplus material, plant, equipment and rubbish is removed promptly at the Supplier's cost;
(b) exercise care and take adequate precautions to ensure that no nuisance, loss, damage or injury to persons or property is caused; and
(c) be responsible for any damage or Loss suffered by WM as a result of the Supplier or any of its personnel or subcontractors being on WM's site and/or premises.
11.1 Without limiting any of the Supplier's other obligations under this Agreement, the Supplier shall, in providing the Goods and/or Services:
(a) meet or exceed any Service Levels; and
(b) notify WM immediately on becoming aware of any failure by it to comply with any Service Level,
applying to any Order.
11.2 Where the Supplier has failed to meet any applicable Service Level, the Supplier will, unless otherwise agreed in writing by WM:
(a) promptly identify the cause(s) of such failure;
(b) allocate such resources as may be reasonably necessary to remedy the failure and any consequences of such failure; and
(c) provide WM with regular written reports and updates as to the cause(s) of the failure, and the steps being taken by the Supplier to remedy such failure, until the failure has been rectified.
11.3 If the Supplier fails to meet any Service Level under this Agreement:
(a) WM shall be entitled (at its discretion) to make a deduction from any payment due to the Supplier in accordance with clause 12.1(c); and/or
(b) on three or more occasions within a rolling 12-month period, or if any single failure has a significant impact on the provision of the Goods and/or Services, WM may terminate this Agreement (or any part thereof), immediately upon written notice to the Supplier.
11.4 Nothing in this clause 11 prejudices or limits any other rights or remedies of WM in respect of any failure by the Supplier to comply with any Service Levels.
12.1 If any of the Goods and/or Services are not, in WM's reasonable opinion, provided in accordance with this Agreement, WM may, without limiting its other rights and remedies:
(a) reject the Goods and/or Services and give the Supplier notice to require the Supplier to immediately rectify the deficiency or breach at the Supplier's case, which may include:
(i) in the case of Goods, the Supplier promptly collecting the Goods and replacing them with Goods ; and/or
(ii) in the case of Services, the Supplier promptly re-supplying the Services;
to WM's reasonable satisfaction, and the Acceptance Period stipulated in clause 8.1(b) will recommence from the date the Goods and/or Services are re-supplied;
(b) withhold any payment due to the Supplier in relation to the deficiency until the deficiency is remedied to WM's reasonable satisfaction; and/or
(c) if the Supplier does not rectify the deficiency to WM's reasonable satisfaction within a reasonable period after WM giving notice under subclause (a) above, deduct a reasonable amount from any payment due to the Supplier to reflect the deficiency.
12.2 Upon rejection of the Goods and/or Services in accordance with clause 12.1(a) above, unless otherwise agreed by the parties:
(a) title and risk in the rejected Goods and/or Services immediately re-vests in the Supplier; and
(b) the Supplier must, at its cost, promptly collect the rejected Goods and/or Services and remove and securely destroy any of WM's Intellectual Property or branding.
12.3 The Supplier is liable for all Loss incurred by WM due to the rejection of the Goods and/or Services.
13.1 Without limiting WM's other rights or remedies, and notwithstanding acceptance under clause 8, if, during the Defects Liability Period, any of the Goods and/or Services fail to satisfy the requirements in clauses 9 and 10, for any reason, including in connection with defective or faulty design, quality, materials or workmanship used in the design, manufacturer or provision of the Goods and/or Services, WM may give written notice to the Supplier, upon receipt of which the Supplier shall, as soon as reasonably practicable and at the Supplier's own cost:
(a) complete any of its obligations under this agreement which are outstanding on the date of such notice;
(b) rectify the defects; and/or
(c) replace the defective Goods and/or Services.
This clause does not exempt the Supplier from liability for any latent defects which become apparent after such Defects Liability Period has expired.
13.2 If the failure described in clause 13.1 above deprives WM of substantially the whole benefit of the relevant Goods and/or Services, WM shall be entitled to reject those Goods and/or Services by notice in writing to the Supplier, in which case WM may (without limiting its other rights or remedies) terminate this Agreement in whole or in part.
13.3 Where defects rectification work is carried out by the Supplier, WM and/or third party(ies) engaged by WM under this clause 13, the relevant rectified Goods and/or Services shall remain covered by the Supplier's warranties, representations and obligations hereunder.
13.4 The Supplier shall also update at its own expense and deliver to WM any documentation that is required to be updated as a consequence of the defect rectification works or replacement under this clause 13.
13.5 Any Goods and/or Services repaired or replaced during the Defects Liability Period shall be subject to a further full Defects Liability Period commencing on the date of completion of any such repair or replacement.
14.1 If so specified in this Agreement or any Order, representatives from each party shall meet as specified in order to review the provision of the Goods and/or Services under this Agreement, including, without limitation:
(a) a review of any significant change in process;
(b) a review of any health and safety incidents or trends; and
(c) the identification and resolution of any issues and problems relating to the Goods and/or Services,
or otherwise at any reasonable request of WM.
14.2 In addition to any other Key Deliverables or reports that may be required under this Agreement, the Supplier shall provide reports to WM as required under Order.
15.1 Each party or its licensors retain ownership of all Intellectual Property Rights in Existing Material belonging to that party or its licensors.
15.2 All drawings, Specifications, artwork, data, material, supplies, equipment, tooling, dies, moulds, fixtures and patterns furnished or paid for by WM, including any improvements to them, shall be WM's exclusive property, and shall be used by the Supplier only in performance of this Agreement. Such Intellectual Property, while in the Supplier’s custody and control, shall be held at the Supplier’s sole risk and, upon WM's request, shall be returned to WM in good condition, normal wear and tear excepted.
15.3 WM grants to the Supplier a non-exclusive licence during the term of this Agreement to use the Intellectual Property of WM for the sole purpose of and only to the minimum extent required to perform its obligations under this Agreement.
15.4 All new Intellectual Property Rights created, discovered or coming into existence as a result of, for the purposes of, or in connection with, the supply of the Goods and/or Services, or the performance of this Agreement, will be vested in and owned by WM immediately upon creation, and as an essential provision of being entitled to the Charges the Supplier shall perform all necessary acts to vest such new Intellectual Property Rights in WM.
15.5 The Supplier grants WM a worldwide, irrevocable, transferable, sub-licensable, perpetual, non-exclusive, fully paid and royalty free licence to use any of the Supplier's Intellectual Property Rights in the Goods and/or Services to:
(a) receive and utilise the Goods and/or Services and to make full use of any Goods and/or Services provided by the Supplier for the purposes envisaged by, and in accordance with, this Agreement; and
(b) exercise its rights and perform its obligations under and in relation to this Agreement.
16.1 The Supplier agrees to keep confidential, and make no disclosure of:
(a) the existence and contents of this Agreement (and for avoidance of doubt Supplier cannot advertise or publish the fact that the Supplier has contracted to provide WM); and
(b) all information obtained from WM under this Agreement or in the course of negotiations in respect of this Agreement, including information concerning or arising from the performance of this Agreement,
(“Confidential Information”).
16.2 Neither party may disclose any Confidential Information without the prior written consent of the other, except and unless:
(a) disclosure is required by law, or necessary to comply with the listing rules of any recognised stock exchange;
(b) disclosure is necessary to obtain the benefits of, and fulfil obligations under, this Agreement, including to a professional advisor (such as a lawyer or an accountant); and
(c) to the extent the information:
(i) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis;
(ii) is (or becomes) public knowledge through no fault of the party;
(iii) was already known to the party before the information was disclosed to it; or
(iv) is developed by the party independently of the information disclosed by the other party.
16.3 All Confidential Information supplied by WM remains the property of WM and may only be used by the Supplier in fulfilling its obligations under this Agreement.
16.4 If the Supplier is required by clause 16.2(a) to make a disclosure or announcement, it shall, before doing so:
(a) give to WM the maximum notice reasonably practicable in the circumstances, specifying the requirement under which it is required to disclose information, and the precise Confidential Information which it is required to disclose;
(b) comply with all reasonable directions by WM to contest or resist the requirement to disclose Confidential Information; and
(c) consult in good faith with WM with a view to agreeing upon the form and timing of the disclosure or announcement.
17.1 The Supplier shall indemnify and hold WM, its affiliated companies, and their Representatives, successors ("Indemnified Parties"), and assigns harmless from and against any and all claims or Losses arising from or in connection with:
(a) the acts, negligence, omissions or wilful misconduct of the Supplier;
(b) the Goods and/or Services supplied;
(c) a breach of any of the Supplier’s warranties or any other term of this Agreement;
(d) any claim that any Goods and/or Services supplied to WM infringe upon or misappropriate any patent, copyright, trademark, trade secret or other Intellectual Property Rights of a third party ("IP Claim"); or
(e) a claim of any lien, security interest of other encumbrance made by a third party.
This clause is intended to give benefit to all Indemnified Parties and is only enforceable by WM directly against the Supplier on behalf of the Indemnified Parties in terms of subpart 1 of part 2 of the Contract and Commercial Law Act 2017.
17.2 Each party will promptly notify the other party in writing on becoming aware of any IP Claim.
17.3 Unless otherwise required by WM, the Supplier will control the conduct of the defence of any IP Claim and all negotiations for its settlement or compromise, but in all cases will:
(a) consult with WM and keep WM fully and frankly informed of such matters;
(b) ensure that WM's name and reputation are not adversely affected by any steps taken by or on behalf of the Supplier, including following any reasonable WM directions relevant to the defence or settlement of the claim to minimise any adverse effect to WM's business or reputation; and
(c) obtain WM's prior written approval to any proposed settlement or compromise.
17.4 If required by WM, at WM's sole discretion, WM or its appointed representative will control the conduct of the defence of any IP Claim and WM is entitled to obtain representation or advice as appropriate in relation to the IP Claim.
17.5 If WM is unable to use any of the Goods and/or Services (or any Key Deliverables or any other aspect of the Goods and/or Services), the documentation and/or any other materials provided by the Supplier under this Agreement (together, "Materials") because they infringe or are likely to infringe any third party's Intellectual Property Rights or other proprietary rights, the Supplier will, at the Supplier's own cost and expense and without prejudice to any other rights of WM, immediately secure all necessary consents for WM's continued undisturbed use of the affected Materials, or if this is not possible, secure for WM replacement Materials on terms no less favourable to WM than this Agreement, provided that the Supplier must ensure that the remedy does not materially affect the functionality or performance of the Materials or WM's use of the Materials.
17.6 Without prejudice to any other rights or remedies in this Agreement, WM may terminate this Agreement if the Supplier is unable to remedy the IP Claim in accordance with clause 17.5 within two months of WM's request, in which case the Supplier must refund all amounts paid by WM in relation to the affected Goods and/or Services, and WM may return such Goods to the Supplier at the Supplier's cost.
18.1 If specified in this Agreement under Other Terms, WM may, at any time, terminate this Agreement, in whole or in part, without cause, by giving the Supplier not less than 20 Business Days' written notice.
18.2 Either the Supplier or WM may immediately terminate this Agreement by written notice to the other party, if the other party commits a material breach of this Agreement that:
(a) cannot be remedied by the defaulting party; or
(b) can be remedied and the defaulting party fails to remedy the breach or perform the obligation to the other party's satisfaction within 15 Business Days (on such longer period as agreed between the parties) after receiving notice from the other party specifying the breach or failure and requiring remedy.
18.3 WM may terminate this Agreement by notice to the Supplier, with immediate effect on the date specified in that notice, if:
(a) the Supplier has been unable to perform its material obligations under this Agreement as a result of a Force Majeure Event for a continuous period of 60 days; or
(b) the Supplier becomes insolvent, goes into liquidation, receivership or statutory management, files or has filed against it a petition in bankruptcy, or makes an assignment for the benefit or creditors.
18.4 Where WM has a right to terminate this Agreement, WM may at its sole discretion and to the extent practicable, instead of termination of this Agreement in full, terminate any affected Order in whole or in part. If WM elects to terminate in part, any variations to this Agreement, including to the Order, shall be agreed in writing by the parties. Without limiting any other rights or remedies WM may have, if, at any time, WM considers that any aspect of the partial termination is not proceeding to its satisfaction, it may by notice to the Supplier convert the partial termination to a full termination.
18.5 Any termination of this Agreement is without prejudice to and will not affect any rights, powers, remedies or obligations of a party that have accrued before termination, or limit either party's rights to recover damages from the other party under this Agreement or pursue any additional or alternative remedies provided.
18.6 Following upon any such termination of this Agreement:
(a) the Supplier shall immediately, unless otherwise required by WM, stop all work on this Agreement, and cause its suppliers and subcontractors to immediately stop work also;
(b) WM will only be required to pay any outstanding Charges to the Supplier that are due and payable under this Agreement at the date of termination;
(c) the Supplier must refund to WM all advance amounts paid by WM for anything not yet supplied (or not supplied in accordance with the requirements of this Agreement) by the Supplier; and
(d) the Supplier shall, on receipt of a written request from WM and at WM's option, return, destroy, and/or permanently delete all Confidential Information or WM Intellectual Property in the possession or control of the Supplier.
19.1 The Supplier will:
(a) comply at all times with, and have policies and procedures in place to ensure compliance with, the HSWA and any associated regulations or codes of practice, while providing any Supply to WM;
(b) without limiting subclause (a) above, have in place, and comply with, health and safety policies, processes and procedures that are appropriate for the performance by the Supplier and its personnel under this Agreement in accordance with Good Industry Practice;
(c) ensure it has a health and safety management plan in place, which sets out the standards, processes and procedures that adequately address its duties and obligations under this Agreement and the HSWA;
(d) when its personnel are in WM's premises and/or any WM site, ensure its personnel comply with WM's health and safety policies and procedures, and other reasonable directions in relation to health and safety, as notified to the Supplier from time to time;
(e) take all practical steps to ensure that no act or omission gives rise to, or is likely to give rise to, the issue of an improvement or prohibition notice, enforcement action or a prosecution under any health and safety legislation, against WM or the Supplier;
(f) if requested, make available to WM any documentation related to health and safety in connection with the provision of the Goods and/or Services under this Agreement; and
(g) if requested, and on reasonable notice, allow WM (and/or its nominees) to audit those health and safety plan(s), policies and procedures (at WM's cost) from time to time;
19.2 The Supplier will have full regard to the safety of all personnel and ensure that it provides a safe working environment for all workers in relation to the provision of the Goods and/or Services and will consult, co-operate and co-ordinate its activities with WM and any other supplier involved with the provision of Goods and/or Services, in order to comply with their respective obligations under the HSWA, this Agreement or at law.
19.3 WM has the right to suspend work or the supply of Goods and/or Services at the Supplier’s expense where WM is not satisfied that all reasonably practicable steps are being taken by the Supplier to ensure the health and safety of workers in connection with the provision of the Goods and/or Services.
19.4 Prior to any work being undertaken on WM's premises, all contractors, subcontractors or employees of the Supplier must complete a health and safety site induction and a company induction. The Supplier shall ensure that all its contractors, subcontractors and employees are informed of the health and safety site inductions and that no person shall be permitted to provide Goods and/or Services or perform any work without being so inducted.
19.5 The Supplier will ensure its contractors, subcontractors, employees, and workers who attend WM’s site or premises are fit to work and agree that they may be subject to WM's drug & alcohol policy, at WM's request. A copy of this policy is available on request.
19.6 Before beginning any contract works or providing any Goods and/or Services, the Supplier will carry out a systematic identification of hazards and associated risks likely to be encountered and will develop controls for all those identified as being significant hazards.
19.7 The Supplier will:
(a) advise WM immediately (or where not practicable, by the end of that Business Day) of:
(i) any accidents, hazards or risks to health and safety that it identifies or creates, including those in which serious harm is caused, a significant hazard is involved or there is a near miss, and
(ii) the steps that it has taken (or will take) to eliminate or minimise such accidents, hazards or risks to health and safety;
(b) meet the requirements of the HSWA in reporting serious harm accidents to WorkSafe NZ; and
(c) co-ordinate and discuss with WM any new hazards or risks created during the provision of the Goods and/or Services, and take all practicable steps to avoid harm and reduce the risks caused to any person as a result of such hazards or risks.
19.8 In the event of the Supplier causing a disruption in the electrical supply, telecommunications supply, gas supply or water supply, or if the Supplier triggers a fire alarm, to or on WM's premises, the Supplier will reimburse WM for any cost or expense which WM incurs because of this event. In particular, the Supplier will reimburse WM for any fines or expenses imposed by Fire Emergency New Zealand as a result of the Supplier's activities.
19.9 The Supplier is responsible for notifying WorkSafe NZ if notifiable work is to be carried out while working for WM.
19.10 Where the Supplier operates vehicles as part of the provision of any Goods and/or Services, then, without limiting the Supplier’s other obligations under this clause 19, the Supplier must:
(a) keep and maintain all records required to be kept under any applicable legislation or regulations from time to time;
(b) obtain and maintain, and comply with the terms and conditions of, all licences, vehicle authorities, certificates of fitness, distance records, insurances, dangerous goods licenses and any other permits required from time to time to legally provide the Goods and/or Services;
(c) ensure that all drivers hold a current driver's licence with the appropriate endorsements, permits and classifications to legally carry out the provision of the Goods and/or Services;
(d) if required by law or WM policy, ensure all drivers have a certification to handle hazardous waste and/or dangerous good;
(e) ensure that all drivers and other relevant personnel possess sufficient knowledge and experience to operate the vehicles (as applicable) and to provide the Goods and/or Services in a safe and competent manner;
(f) ensure that all loads are properly covered and secured and that all other reasonable precautions are taken to avoid any spillage while loading, transporting or disposing of materials;
(g) ensure that all vehicles used in the provision of any Goods and/or Services are serviced in accordance with manufacturers’ service schedules; and
(h) notify WM as soon as practicable if any of the following occurs:
(i) any fault is found in any vehicle which relates to its roadworthiness, including in respect of its brakes, suspension or steering;
(ii) any incident occurs which involves property damage, vehicle damage or personal injury whilst providing Goods and/or Services for WM; and
(iii) any road traffic accident occurs whilst providing Goods and/or Services for WM.
20.1 The Supplier will comply with the Privacy Laws, including:
(a) ensuring that the Goods and/or Services provided by the Supplier can be used by WM in compliance with the Privacy Laws;
(b) have appropriate measures in accordance with Good Industry Practice in place to mitigate the occurrence of any privacy breach;
(c) comply with all reasonable WM policies and directions notified by WM to the Supplier in relation to privacy; and
(d) provide all information and assistance reasonably requested by WM in order to facilitate compliance by WM with its obligations under the Privacy Laws.
20.2 If the Supplier becomes aware of a privacy breach, suspected privacy breach or near miss in relation to either WM or this Agreement, the Supplier shall:
(a) notify WM immediately at privacyofficer@wm.nz as soon as it becomes aware of such breach or near miss;
(b) work together with WM to manage the consequences and implications of the breach and implement reasonable procedures to prevent such breaches or near misses in the future;
(c) make all necessary personnel available to WM to assist with the consequences and implications arising from the breach or near miss; and
(d) not comment publicly, including to the media about the breach or near miss, without the prior written consent of WM.
21.1 The Supplier will:
(a) in connection with the use of any WM information technology system, comply with WM security requirements known or notified to the Supplier;
(b) prohibit, and take all reasonable steps to prevent, any unauthorised access, destruction, corruption, loss or alteration of Confidential Information; and
(c) take all appropriate precautions to prevent the introduction of Disabling Code to WM when providing the Goods and/or Services.
21.2 If the Supplier becomes aware of any actual, threatened or suspected information technology security or cyber incident related in any way to this Agreement, or any breach in the confidentiality, availability or integrity of Confidential Information (in each case, a "Security Breach"), the Supplier must:
(a) immediately notify WM of the Security Breach;
(b) assist and work together with WM to defend against, address, respond to, and mitigate adverse impacts from, such Security Breach; and
(c) if WM requests, assist WM to notify affected individuals where WM determines such notification should occur.
22.1 The Supplier warrants to WM that it shall not do anything or omit to do anything, or use materials, substances or processes which:
(a) would or is likely to discharge a contaminant into the environment that is not in compliance with resource consents held by WM, or that would or is likely to cause any adverse effect on the environment;
(b) would or is likely to result in a breach of any duty or obligation of the Supplier under the RMA; or
(c) does or is likely to give rise to the issue of an abatement notice, enforcement proceedings or an excessive noise direction under the RMA against WM, the Supplier or any subcontractor of the Supplier.
22.2 The Supplier is responsible for any spillage in the course of providing the Goods and/or Services (including without limitation, the costs of removal or clean up).
23.1 The Supplier shall not subcontract all or any part of its obligations under this Agreement without the prior consent of WM (which may be withheld at WM's sole discretion). The Supplier shall, notwithstanding any permitted subcontracting, remain fully liable to WM for the performance of the other obligations of the Supplier under this Agreement and will be responsible for all acts, omissions and negligence of any subcontractors as if they were the acts, omissions or negligence of the Supplier.
23.2 The Supplier must ensure that an appropriate written agreement is in place between the Supplier and the subcontractor that is consistent with the terms and conditions of this Agreement and that the terms of each subcontract between the Supplier and the relevant subcontractor include:
(a) similar obligations as those stated in clause 19; and
(b) similar warranties and undertakings as those stated in clauses 9 and 22.
24.1 Neither party will be liable to the other for any loss of profits, or any consequential, indirect or special loss or damages suffered by the other party, arising directly or indirectly from any breach of this Agreement or from any negligence or other act or omission of either party.
24.2 If a Liability Cap is specified in any Order, then subject to clause 24.4, the Supplier's total aggregate liability to WM in respect of all claims arising under or in connection with that Order, whether in contract, or tort (including negligence) or otherwise, shall not exceed the amount specified.
24.3 WM's total aggregate liability under or in connection with this Agreement, whether in contract, or tort (including negligence) or otherwise, is limited to an amount equal to the Charges paid under this Agreement in the 12 months prior to the date of the incident giving rise to the liability.
24.4 The limitation on liability set out in clause 24.2 shall not limit:
(a) the Supplier's liability with respect to the indemnification under clause 9.5;
(b) the Supplier's liability with respect to the indemnification under clause 17.1; and
(c) any breach by the Supplier of clause 16 (Confidentiality).
24.5 During the term of this Agreement and for a period of 2 years following the Expiry Date, the Supplier must, at its own expense provide the level of insurance cover stipulated in under this Agreement on terms consistent with standard market terms for such policies and with an insurer of AA rated or better. The Supplier must on WM's request, produce satisfactory evidence of the insurance.
25.1 If a dispute, question or difference ("Dispute") arises between the parties, then either party may notify the other party in writing to the Address for Notices setting out the particulars of the Dispute, naming its senior representative for resolving the Dispute and requiring that the Dispute be determined in accordance with this clause ("Dispute Notice"). The party receiving the Dispute Notice must, within 5 Business Days of the date of the Dispute Notice, notify the other party in writing of its senior representative for resolving the Dispute.
25.2 The persons designated as authorised senior representatives of the parties shall meet promptly and as many times as necessary to discuss the matter and to resolve the Dispute.
25.3 If the parties do not resolve the Dispute through negotiation within 20 Business Days, or such later time as the parties agree, of the date of the Dispute Notice, then either party may refer the Dispute to arbitration, by notice in writing to the other party ("Arbitration Notice"). The arbitration will be determined by a sole arbitrator (being a New Zealand resident) as soon as possible in Auckland, New Zealand. If the parties cannot agree on an arbitrator within 5 Business Days of the giving of the Arbitration Notice, the arbitrator will be appointed by the New Zealand Dispute Resolution Centre. The arbitration will be conducted in accordance with the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule to that Act). The decision of the arbitrator will be final and binding. The costs of the arbitrator shall (subject to any award by the arbitrator) be borne equally by the parties to the dispute.
25.4 Subject to any right any party may have to apply to a court for any interim or preliminary relief in respect of the Dispute, completion or termination of the negotiation as set out in clause 25.2 shall be a condition precedent to the commencement of arbitration under clause 25.3.
25.5 The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to clause 25.2 is to attempt to settle the Dispute between the parties. No party may use any information or documents obtained solely by reason of clause 25.2 for any purpose other than in an attempt to settle the Dispute.
25.6 Notwithstanding the Dispute, each party shall continue to perform their respective obligations in accordance with this Agreement to the maximum extent possible (having regard to the nature of the Dispute).
25.7 Nothing in this clause 25 will preclude a party from seeking urgent interlocutory relief before a court.
26.1 WM may at any time, notify the Supplier that WM wishes to audit any or all of the Supplier's:
(a) Supply of the Goods and/or Services;
(b) invoicing; and
(c) compliance with Orders and the other terms of this Agreement.
26.2 WM or the auditor (as the case may be) may make copies of any records or other information acquired by it for the purposes of any audit.
26.3 WM will notify the Supplier of the date on which the audit will commence, which must be at least 2 Business Days after receipt of a notice under clause 26.1. The Supplier must give WM or its nominee full access to inspect, meet or access:
(a) any premises at which or from which the Supplier supplies (including designs, configures, manufactures, and or constructs) the Goods and/or Services;
(b) any Supplier personnel; and
(c) any information, data, accounts, systems, documents and records relevant to the supply of the Goods and/or Services held by or on behalf of the Supplier or the Supplier's personnel, on and from the date of commencement of the audit, during WM's normal business hours for the purpose of conducting the audit. WM will comply with the Supplier's reasonable security and confidentiality requirements in conducting any audit under this clause 26.3.
26.4 WM will meet its costs of any audit unless the audit discloses a breach of this Agreement or that the Supplier has overcharged WM on any invoice by 5%. In that case, the Supplier will meet WM's audit costs.
26.5 Without limiting any of WM other rights or remedies, if any audit conducted under clause 26 discloses any failure to comply with this Agreement by the Supplier, the Supplier will promptly remedy the non-compliance. The Supplier will refund any amounts overcharged by the Supplier within 5 Business Days of completion of an audit and delivery of an audit report.
27.1 Neither the Supplier or WM shall be liable for any failure or delay in complying with any obligation imposed on such party under this Agreement (excluding any payment obligation) if:
(a) the failure or delay arises from, or in connection with, a Force Majeure Event;
(b) that party, on becoming aware of the Force Majeure Event, promptly notifies the other party in writing of the nature of, the expected duration of, and the obligation(s) affected by, the Force Majeure Event; and
(c) that party uses its best endeavours to:
(i) mitigate the effects of the Force Majeure Event on the performance of that party's obligations under this Agreement;
(ii) perform that party's obligations which are not affected by the Force Majeure Event; and
(iii) perform that party's obligations under this Agreement on time despite the Force Majeure Event,
in each case without limiting clause 18.4.
28.1 Each notice or other communication given under this Agreement shall be in writing and delivered personally or sent by post or email to the address of the relevant party specified under this Agreement, or to any other address from time to time designated for that purpose by at least 5 Business Days' prior notice to the other party.
28.2 A notice under this Agreement is deemed to be received if:
(a) Delivery: delivered personally, when delivered;
(b) Post: posted, 5 Business Days after posting or, in the case of international post, 7 Business Days after posting; and
(c) Email: sent by email:
(i) if sent between the hours of 9am and 5pm (local time) on a Business Day, at the time of transmission; or
(ii) if subclause (i) does not apply, at 9am (local time) on the Business Day most immediately after the time of sending,
provided that an email is not deemed received unless (if receipt is disputed) the party giving notice produces a printed copy of the email which evidences that the email was sent to the email address of the party given notice.
29.1 This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes and cancels all prior correspondence, understandings, representations or warranties or agreements between the parties. The Supplier acknowledges that the terms and conditions of this Agreement will govern even when the Supplier sends in its own terms with any Order or other documentation relating to the provision of the Goods and/or Services, which will not be effective to amend, supersede or create any agreement between the parties.
29.2 Any variations must be agreed in writing by the parties prior to them being implemented.
29.3 The Supplier is an independent contractor of WM. Nothing in this Agreement constitutes any other type of relationship between the parties.
29.4 Failing to insist on strict performance on any term of this Agreement is not a waiver of any later breach or default.
29.5 Each provision of this Agreement is severable. Severance does not affect any other provision.
29.6 The laws of New Zealand govern this Agreement and each party submits to the non-exclusive jurisdiction of the New Zealand courts.
29.7 The Supplier shall not directly or indirectly assign, transfer or otherwise dispose of any of its rights or interests in, or any of its obligations or liabilities under, or in connection with, this Agreement except with the prior consent of WM (at its sole discretion). For the purposes of this clause, a Change of Control of the Supplier shall be deemed an assignment by the Supplier.
29.8 Each party will bear its own costs incurred in preparing, negotiating, implementing and enforcing this Agreement.
29.9 Subject to clause 17.1, a person who is not a party shall not have any rights under or in connection with this Agreement by virtue of subpart 1 of part 2 of the Contract and Commercial Law Act 2017.
29.10 The clauses that by their nature should remain in force on termination or expiration of this Agreement do so, including clauses 7, 9, 10, 12, 13, 15, 16, 17, 18, 20, 21, 24, 25, 27 and 29, together with those other provisions of this Agreement which are incidental to, and required in order to give effect to, those clauses.
30.1 Both the Supplier and WM each agree to take all reasonable steps to avoid being involved with Modern Slavery, including:
(a) being diligent in relation to the respective supply chains
(b) having appropriate policies and training to identify risks of Modern Slavery; and
(c) ensuring that reasonable investigations are undertaken to ensure there are no forms of Modern Slavey in its supply chain, and the results acted on appropriately.
In this clause “Modern Slavery” means conduct which would constitute an offence under any of sections 98, 98AA and 98D of the Crimes Act 1961, or section 351 of the Immigration Act 2009.
