Z purchase order terms and conditions

Last updated: 15 September 2021

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1. Definitions

1.1 The following terms shall mean: Agent means any third party nominated by Z.

Confidential Information means all information that one party or its agents (the Providing Party) may provide to the other party (the Receiving Party) whether before or after the date of this Purchase Order.

Force Majeure Event means, in relation to either party (the Non-Performing Party), an event or circumstance which is beyond the reasonable control of the Non-Performing Party and which is:

(a) an act of God;

(b) an act of public enemy, or declared or undeclared war or threat of war; or

(c) a terrorist act, blockade, revolution, riot, insurrection, civil commotion or public demonstration (other than one caused by the Non-Performing Party), but does not include any event or circumstance which could have been avoided, prevented or circumvented by the exercise, by the Non-Performing Party, of Industry Good Practice.

Goods means the goods to be supplied by the Supplier to Z as set out in this Purchase Order and any Purchase Order Work Package.

GST means goods and services tax chargeable pursuant to the GST Act.

GST Act means the Goods and Services Tax Act 1985 as amended or replaced with equivalent legislation.

HSSE means health, safety, security and the environment.

HSW Act means the Health and Safety at Work Act 2015.

Industry Good Practice means the same or better standard of skill, care, diligence and effectiveness expected of a contractor operating in New Zealand in the same industry in which the Supplier operates.

Insignia means any sign (including any letter, word, name, signature, numeral device, brand, heading, label, ticket, shape, colour, sound or aspect of packaging) used to identify and distinguish goods and services dealt with or provided in the course of trade by Z or any of its affiliates or a company or other entity associated with Z, and includes signs licensed to Z and any new signs as may be introduced by Z from time to time.

Intellectual Property Rights includes, without limitation, all rights and interests, whether registered or not and whether registrable or not, in and to copyright, trade marks, service marks, designs, patents, database rights, business names, trade names, domain names, layout designs, rights in any undisclosed or confidential information (such as trade secrets or inventions), other proprietary and similar intellectual property rights and any rights to registration of such rights (whether created before or after the commencement of this Purchase Order) as may exist anywhere in the world.

Law means any Act of Parliament, regulation, by-law, order, code, licence, permit, approval, regulatory instrument or any other subordinate instrument, or any other legally binding direction or requirement, including the HSW Act.

New Intellectual Property means all Intellectual Property Rights created, made, or discovered by the Supplier or its Personnel in the relation to the carrying out of the Supplier’s obligations under this Purchase Order.

Notifiable Event includes any event or incident for which the Supplier is required to notify a regulator under HSSE Law and any near-miss of such an incident.

PCBU has the meaning set out in the HSW Act.

Personal Data means any information that can be used directly or indirectly, alone or in combination with other information, to identify an individual.

Personnel means employees, agents, representatives, or contractors, or invitees including any subcontractor’s employees, agents, representatives, or contractors or invitees, employed or appointed by the Supplier to carry out any or all of the Supplier’s obligations under this Purchase Order.

Pre-existing Intellectual Property means all Intellectual Property Rights owned by or licensed to a party as at the commencement of this Purchase Order or which are generated or licensed by a party independently of this Purchase Order.

Price means the price specified in this Purchase Order or as otherwise agreed in writing between Z and the Supplier, subject to such additions to, or deductions from, that price as may be made in accordance with this Purchase Order.

Purchase Order means the formal documents issued, or specifically approved and incorporated, by Z (including without limitation these terms and conditions, any Purchase Order Work Package and any other attachments) in relation to the Goods and/or Services that Z may require.

Purchase Order Work Package means the purchase order work package signed by the Supplier and Z in relation to the supply of the Goods and/or Services.

Services means the services to be supplied by the Supplier to Z as set out in this Purchase Order and any Purchase Order Work Package. Supplier means the person, firm or corporation from whom the Goods and/or Services are being purchased pursuant to this Purchase Order.

Trade Mark means a trade mark created, owned or used by, or licensed to, Z or any of its affiliates, irrespective of whether or not that trade mark is registered or registrable.

Working Day means a day, other than a Saturday or Sunday, on which banks in Wellington are open.

Z means Z Energy Limited and/or Z Energy 2015 Limited (as applicable).

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2. Supplier's Responsibilities

2.1. The Supplier agrees with Z to supply the Goods and/or Services in accordance with this Purchase Order in return for the Price.

2.2. In supplying the Goods and/or Services, the Supplier shall:

(a) exercise the degree of skill, care and diligence reasonably expected of a Supplier supplying goods and/or services similar to the Goods and/or Services and in accordance with Industry Good Practice;

(b) unless agreed otherwise in writing, be responsible for and bear all costs and expenses for the packaging, packing, delivery and unloading of any Goods it supplies;

(c) where relevant, supply appropriately skilled personnel and appropriate resources;

(d) provide documents, reports, and other materials necessary to enable Z to receive the full benefit of the Goods and/or Services;

(e) comply with:

(i) all Laws and rules or requirements of any government, local or public authority and the professional codes of conduct or practice applicable to the Goods and/or Services and keep Z indemnified from and against all liability, claims and demands in respect of or arising out of any breach or nonobservance of any such legislation or failure to comply with any such requirements; and

(ii) all directions as to safety or safe practices from time to time issued by or on behalf of Z;

(f) notify Z immediately if it believes that there is likely to be, or that there is, a delay in supplying the Goods and/or Services;

(g) include this Purchase Order number on all delivery documentation; Z Purchase Order Terms and Conditions

(h) ensure:

(i) all Goods are delivered to the location specified in this Purchase Order and any other transport instruction(s) in this Purchase Order are followed; and

(ii) all Goods are suitably packed to minimise the risk of damage during transportation; and

(iii) pass on all warranties provided by third parties in relation to Goods as soon as Z has made payment for those Goods.

2.3. The Supplier and its Personnel are independent contractors and this Purchase Order does not, and shall not be construed to, create an employment, joint venture, agency, trust or partnership relationship between the Supplier and Z. The Supplier shall keep Z indemnified from and against all liability, claims and demands in respect of or arising out of any assertion by the Supplier contrary to this clause 2.3.

2.4. The Supplier is responsible for paying all taxes, levies and payments relating to all payments made by Z to the Supplier for the Goods and/or Services, including, without limitation, the salaries, fees and costs of its Personnel, including all relevant and employee benefits. The Supplier shall keep Z indemnified from and against all liability, claims and demands in respect of or arising out of any non-payment of the same.

2.5. If the Supplier breaches this Purchase Order, Z shall give notice in writing to the Supplier to remedy the breach. Should the Supplier fail to comply with the notice within the time specified in the notice, then Z may:

(a) contract an alternative service provider to supply such of the Goods and/or Services as the Supplier neglected or failed to do;

(b) if Z thinks fit, take the Goods and/or Services wholly or in part out of the Supplier’s hands and re-contract with an alternative service provider for the purpose of completing all or any part of this Purchase Order; and

(c) where in the reasonable opinion of Z any breach or failure by the Supplier is required to be remedied urgently, without prejudice to its other rights and remedies, take such steps as are necessary to remedy such breach or failure, and all costs reasonably incurred by Z shall be a debt due and payable by the Supplier to Z.

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3. Quantity and inspection of goods

3.1. The Supplier must supply the quantity of Goods specified in this Purchase Order or variation advised by Z.

3.2. Z may elect to return any excess quantity to the Supplier, and the Supplier will, at Z’s request, either credit the account of Z with, or provide a full refund of, the invoiced value of the excess. Where the Supplier delivers less than the quantity specified on this Purchase Order and is unable to fulfil the remaining quantity in a timeframe agreeable to Z, Z may elect to return the quantity delivered to the Supplier and the Supplier will, at Z’s request, either credit the account of Z with, or provide a full refund of, the invoiced value of the quantity returned. Any freight or other costs incurred by Z as a result of the delivery of excess or insufficient quantities will be payable by the Supplier.

3.3. The Supplier agrees that Z or its designated Agent shall have the right to inspect all or part of the Goods at any stage of the design, manufacture or delivery process. This right of inspection shall be extended by the Supplier to Z under any sub-contracts in relation to this Purchase Order.

3.4. All Goods received by Z are received subject to Z’s inspection within a reasonable time after delivery at the location at which the goods will be used by Z. If, upon inspection, any Goods are found to be unsatisfactory or defective, Z may return such Goods to the Supplier at the Supplier’s expense.

3.5. Upon return of any unsatisfactory or defective Goods, the Supplier shall reimburse Z for:

(a) any amount paid by Z in relation to the returned Goods; and

(b) any costs incurred by Z in connection with the delivery or return of such Goods.

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4. Subcontractors and assignment

The Supplier shall not assign or sub-contract this Purchase Order in full or in part without Z’s prior written consent. The Supplier shall be responsible and liable, as primary obligor, for all work carried out by any subcontractor and for any act or omission of any subcontractor. A change in the management or a change in control of 50% or more of the voting capital of the Supplier or the sale of a major part of its business or assets shall be deemed to be an assignment of the purposes of this clause 4 and accordingly shall require the prior written consent of Z (not to be unreasonably withheld).

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5. Warranties

5.1. The Supplier warrants at all times that:

(a) it has the right to supply the Goods and/or Services;

(b) the Goods and/or Services supplied under this Purchase Order will comply with any and all applicable statutory and regulatory requirements;

(c) the Goods supplied under this Purchase Order will be new;

(d) the Goods will be fit for their intended purpose made known by Z to the Supplier (either expressly or by implication) or otherwise fit for the purpose for which the Goods are usually acquired;

(e) the Goods will be of merchantable quality;

(f) the Goods will comply with any description and specification of the Goods provided by Z;

(g) the Goods will comply with any sample provided to Z;

(h) the Supplier will take reasonable action to ensure that facilities are available for the repair of the Goods and supply of parts for the Goods are reasonably available for a reasonable period, but in any case for at least twelve months, after the Goods are supplied; and

(i) it will supply the Goods free of any encumbrance or interest of a third party.

5.2. Without prejudice to any other rights of Z, if the Supplier breaches any warranty in connection with the:

(a) supply of Services under this Purchase Order, then at Z’s option the Supplier must promptly:

(i) re-supply the Services at no additional cost to Z; or

(ii) reimburse Z the costs of re-supply (whether by Z or a third party); and

(b) supply of Goods under this Purchase Order, then at Z’s option the Supplier must promptly:

(i) replace the Goods with conforming Goods at no additional cost to Z;

(ii) repair the Goods at no additional cost to Z; or

(iii) reimburse Z the costs of replacement or repair (whether by Z or a third party).

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6. Price and method of payment

6.1. In consideration for supplying the Goods and/or Services in accordance with this Purchase Order, Z shall pay to the Supplier the Price, in accordance with this clause 6.

6.2. If the Price is calculated on a time and materials basis, the Supplier shall:

(a) use all reasonable endeavours to supply the Services within the estimate provided to Z (the Estimate); and

(b) advise Z immediately if its fees are likely to exceed the Estimate;

(c) limit its Price to the Estimate or any revised Estimate agreed between the Supplier and Z in writing.

6.3. The Supplier agrees that Z is not liable to pay any fees in excess of the Estimate if the Supplier has failed to comply with clause 6.2(b).

6.4. If the Price is a fixed price, then the Price:

(a) comprises the total remuneration payable by Z to the Supplier for the Goods and/or Services; and
(b) cannot be exceeded without Z’s prior written consent.

6.5. The Price is the total amount payable by Z for the Goods and/or Services and is inclusive of all costs, fees, duties and taxes (other than GST) relating to the supply of the Goods and/or Services. Accordingly, all costs, expenses, duties and taxes (other than applicable GST, which may be charged to Z on the Price) incurred by the Supplier in supplying the Goods and/or Services or performing its obligations under this Purchase Order are for the sole account and responsibility of the Supplier and shall not be charged to Z.

6.6. No cost or expense incurred by the Supplier in performing any of its obligations or exercising any of its rights under this Purchase Order shall be charged to Z, unless specifically provided for in this Purchase Order.

6.7. If Z is required by Law to make any deduction or withholding on account of taxation from, on or in relation to, any amount paid or payable by Z under this Purchase Order, Z will deduct such amount from the amount to be paid to the Supplier and pay the same to the applicable taxation authority. For the avoidance of doubt, Z is not obliged in any way to indemnify the Supplier for, or gross up, the payments under this Purchase Order by reason of any such deduction or withholding.

6.8. Z is only obliged to pay the Supplier under this clause 6 on receiving a valid tax invoice. For a tax invoice to be valid, the invoice must specify the GST payable in respect of the Goods and/or Services, must comply with the GST Act (and contain all the particulars specified under section 24 thereof) and must include such information as is reasonably required by Z from time to time to verify the claims for payment.

6.9. The Supplier must include this Purchase Order number on the invoice and must send the invoice to the address indicated on this Purchase Order.

6.10. Except in the case of disputed amounts, Z shall pay the amount due under a valid tax invoice by the 20th of the month following the month in which a valid tax invoice is received by Z.

6.11. Payment of invoices issued by the Supplier does not constitute acceptance of the Goods and/or Services by Z.

6.12. Z shall have the right to deduct or set off any amount payable by the Supplier to Z under this Purchase Order from any payment to be made by Z to the Supplier under this Purchase Order.

6.13. If Z disputes any amount set out in an invoice, Z shall use reasonable endeavours to advise the Supplier in writing of the amount in dispute and the reason for the dispute before the due date for payment of the relevant invoice. Z shall pay any undisputed portion of the invoice in accordance with this Purchase Order. Failure by Z to notify the Supplier in accordance with this clause 6.13 shall not prevent Z from disputing any item in an invoice at a later date (including without limitation a date after the date on which the invoice was paid). In the event of a dispute regarding an invoice:

(a) Z and the Supplier shall initiate the dispute resolution procedure in clause 14; and

(b) after the dispute has been resolved:

(i) Z shall pay any amounts found to be payable by Z within 5 Working Days; or

(ii) if it is found that Z has overpaid the Supplier under an invoice, the Supplier shall issue a credit note to Z in respect of that amount within 5 Working Days.

6.14. Unless otherwise agreed, Z shall not be responsible or liable for, and the Supplier waives any and all claims with respect to, any amounts for which the Supplier fails to provide an invoice to Z that is in compliance with the terms of this Purchase Order within 180 days of the earlier of either the termination or expiry of this Purchase Order or the completion of the supply of Goods and/or Services under this Purchase Order.

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7. Title and risk

7.1. Title in the Goods passes to Z at the earlier of the time that:

(a) Z makes payment for the Goods;

(b) Z takes delivery of the Goods; or

(c) if the Supplier is required to install the Goods, the Goods have been installed at the site by the Supplier.

7.2. Any such transfer of title will be without prejudice to Z’s right to reject the Goods in the case of non-conformity with the requirements of this Purchase Order.

7.3. Risk of loss or damage to the Goods resides with the Supplier until:

(a) if the Supplier is not required to install the Goods, then the time Z takes delivery of the Goods and accepts the Goods as in conformance with the requirements of this Purchase Order; or

(b) if the Supplier is required to install the Goods, then the time at which the Goods have been installed by the Supplier in accordance with this Purchase Order and Z accepts the Goods as in conformance with the requirements of this Purchase Order.

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8. Cancellation of a purchase order

8.1. Notwithstanding any other right or obligation in this Purchase Order, Z may cancel this Purchase Order at any time by giving written notice to the Supplier. Where the Supplier is not in breach of this Purchase Order, the Supplier shall be paid for:

(a) the Services which are due to be, and have been, supplied up to the date of cancellation;

(b) Goods accepted by Z and/or Goods shipped prior to the date of cancellation, where the Goods comprise the Supplier’s standard stock; and

(c) Goods manufactured or fabricated prior to the date of cancellation to Z’s specification or specifications prepared by Supplier for Z. Z is not obliged to make any further payment to the Supplier as a result of cancellation.

8.2. Either party (the Cancelling Party) may cancel this Purchase Order immediately by written notice to the other party (the Other Party):

(a) if the Other Party commits a material breach of this Purchase Order, provided that in the case of a breach capable of remedy, such breach has not been remedied within 5 Working Days of receipt by the Other Party of notice from the Cancelling Party requiring the breach to be remedied; or

(b) if:

(i) the Other Party ceases business or voluntarily suspends its business for more than 5 Working Days;

(ii) the Other Party becomes bankrupt (if the Other Party is an individual);

(iii) the Other Party makes an arrangement, or enters into a composition, with its creditors;

(iv) a resolution is passed, or an application or an order is made, to place the Other Party into liquidation (except for the purposes of a solvent reconstruction or amalgamation); or

(v) a receiver, manager, trustee, administrator or similar is appointed over some or all of the Other Party’s business or assets. If this Purchase Order is cancelled by Z under this clause 8.2, Z may withhold any payments due at the date of cancellation and treat all such sums as security for any money owed by the Supplier to Z and all damages, losses, costs and expenses which Z may sustain or incur as a result of such cancellation.

8.3. Upon cancellation of this Purchase Order, the Supplier shall:

(a) discontinue the manufacture and supply of the Goods and/or Services; and

(b) shall immediately do everything possible to mitigate any costs incurred as a result of the cancellation.

8.4. Cancellation of this Purchase Order shall not affect:

(a) any rights of a party against any other party which have accrued up to and including cancellation; and

(b) the provisions of this Purchase Order which expressly or by their nature survive cancellation including without limitation clauses 5, 6, 9, 10 and 11.

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9. Liabilities, indemnities and insurance

9.1. To the extent permitted by Law, the Supplier indemnifies and agrees to hold Z and any of its affiliates, officers, directors, employees, agents, successors and assigns harmless against all costs, claims, expenses, suits, actions, damages and any other liabilities arising out of or in connection with the Supplier’s performance of this Purchase Order, except to the extent such loss, damage or injury was caused or contributed to by the negligence or other default of Z.

9.2. Neither party shall be liable to the other party for any loss of profits or of anticipated profits, loss of business opportunity, loss of contract, or any consequential or indirect losses or damage arising out of or in connection with this Purchase Order howsoever caused.

9.3. Notwithstanding anything to the contrary in this Purchase Order, Z’s maximum aggregate liability arising out of or in connection with this Purchase Order, however such liability may arise (including without limitation any liability arising out of Z’s negligence or the negligence of any Z affiliates, officers, directors, employees, agents, successors or assigns) in respect of all events occurring in relation to this Purchase Order shall be limited to the Price paid by Z to the Supplier for this Purchase Order.

9.4. None of Z’s affiliates, officers, directors, employees, agents, successors or assigns shall have any personal liability in connection with this Purchase Order.

9.5. The Supplier shall maintain any insurance required by Law or deemed by the Supplier or Z (acting reasonably) to be necessary to fully cover its liabilities in relation to this Purchase Order.

9.6. The Supplier shall on request by Z, provide evidence of the policies required pursuant to clause 9.5 in the form of a certificate of currency from the Supplier’s insurer.

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10. Intellectual property

10.1. All New Intellectual Property arising under or in relation to this Purchase Order shall be, unless expressly provided otherwise, the absolute property of Z and will vest in Z upon its creation. The Supplier shall, if requested by Z, take all actions and execute all necessary documents required to vest any New Intellectual Property in Z and to give effect to this clause 10.1.

10.2. All Pre-existing Intellectual Property shall remain the property of the party who is the owner at the date of this Purchase Order. The Supplier grants to Z, or agrees to procure the grant to Z of, an unrestricted, royalty-free, irrevocable, non-exclusive licence to use and copy Pre-existing Intellectual Property to the extent reasonably required to enable Z to make use of the Goods and/or Services or adapt, alter, modify, market and/or sell the Goods and/or Services.

10.3. The Supplier must not at any time use any Trade Mark or Insignia without the prior written consent of Z.

10.4. The Supplier warrants that neither the New Intellectual Property, Z’s use of the Supplier’s Pre-existing Intellectual Property, nor the supply of the Goods and/or Services will infringe the Intellectual Property Rights of any third party.

10.5. The Supplier indemnifies Z against all claims, costs, damages, expenses or other liabilities relating to an infringement of any Intellectual Property Rights in respect of any New Intellectual Property, any use by Z of the Supplier’s Pre-existing Intellectual Property, any Goods and/or Services supplied, or equipment, materials, or processes used by the Supplier in relation to the Goods and/or Services.

10.6. For the purposes of clause 10, Z’s rights and the benefits received under this Purchase Order extend to any operator (Z or otherwise) within Z’s sales network in accordance with Part 2, Subpart 1 of the Contract and Commercial Law Act 2017.

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11. Confidentiality and data protection

11.1. Each party (the Receiving Party) shall:

(a) keep the other party’s (the Providing Party) Confidential Information confidential and secure;

(b) not disclose or permit disclosure of the Providing Party’s Confidential Information to any third party except to enable the Receiving Party to perform its obligations or receive any benefit under this Purchase Order, in which case the Receiving Party will not disclose such information until the third party has entered into a confidentiality agreement approved by the Providing Party or, insofar as that is not reasonably practicable, an agreement under which the third party agrees:

(i) to be bound by the provisions of this clause 11; and

(ii) that such agreement is entered into for the benefit of the Providing Party; and

(c) ensure that any Z staff or the Supplier’s Personnel (as applicable) with access to any of the Providing Party’s Confidential Information shall be subject to the same obligations as the Receiving Party and the Receiving Party shall take all reasonable steps to ensure that Z staff or the Supplier’s Personnel (as applicable) are made aware of and perform such obligations and the Receiving Party shall be liable to the Providing Party for any failure by those staff to comply with such obligations.

11.2. Notwithstanding clause 11.1, clause 11.1 shall not apply to any disclosure of Confidential Information:

(a) required to be disclosed by Law; or

(b) that the Providing Party agrees to in writing before the disclosure is made; or

(c) is or becomes publicly available through no fault of the Receiving Party; or

(d) is independently acquired or developed by the Receiving Party without breaching any of its obligations under this Purchase Order or at Law, and without the benefit or use of any of the Providing Party’s Confidential Information disclosed by the Providing Party; or

(e) is lawfully acquired by the Receiving Party from a third party, provided such information is not obtained as a result of a breach by that third party of any confidentiality obligations owing to the Providing Party.

11.3. The Supplier must not make any public or media statements to anyone about this Purchase Order (including the existence, subject matter and/or contents of this Purchase Order) without Z’s prior written approval.

11.4. Upon the expiry or earlier termination of this Purchase Order, each party shall, as far as reasonably practicable, as soon as reasonably possible but in any case within 20 Working Days: (a) return to the Providing Party (without keeping or making a copy); or (b) at the Providing Party’s option, destroy, all Confidential Information furnished by or attained from the Providing Party in connection with this Purchase Order, except for information which the Providing Party agrees in writing can be retained or is retained for archival purposes.

11.5. The Supplier will process any and all Personal Data it processes on behalf of Z in accordance with all applicable Laws and Z’s reasonable requests with respect to protecting Personal Data, including:

(a) restricting employee and agent/subcontractor access to Personal Data on a need to know basis;

(b) following Z’s instructions in connection with processing Personal Data;

(c) not disclosing Personal Data to any third party without Z’s written permission; Z PO T&C May 2020

(d) applying appropriate security measures to protect Personal Data; and

(e) unless otherwise agreed, deleting any Personal Data in its possession or control at the expiry or termination of this Purchase Order. If there is any unauthorized, unlawful, and/or unintended processing, access, disclosure or loss of Personal Data, the Supplier will, immediately upon becoming aware, notify Z, and will cooperate with Z’s reasonable requests to investigate and remediate such incident and provide appropriate response and redress.

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12. HSSE obligations

12.1. Mutual HSSE obligations: Each party will:

(a) ensure that it and its Personnel are aware of its HSSE obligations under the Law and this Purchase Order;

(b) perform its obligations in accordance with the Law and Industry Good Practice;

(c) have, and apply adequate resources and diligence to, an adequate operational risk management system and processes in place to ensure it can comply with its HSSE obligations under Law and this Purchase Order (HSSE System); and

(d) without limiting a party’s other obligations in this clause, co-operate, consult and co-ordinate with the other party and, where any other PCBU is involved in relation to this Purchase Order, the parties will agree how to ensure that those other PCBUs co-operate, consult and co-ordinate with the parties and each other.

12.2. The Supplier’s HSSE obligations: The Supplier will:

(a) obtain and maintain a current accreditation against the ‘Z Contractor and Supplier Management System’ notified by Z from time to time; and

(b) ensure that each of its Personnel is competent and appropriately qualified, equipped, trained and supervised to perform the relevant activities in accordance with this Purchase Order.

(c) Immediately notify Z if it becomes aware of any person or entity who is (or is likely to become) a PCBU, and will have direct or indirect involvement with the Supplier’s provision of Services to Z.

12.3. Permit to work: Unless agreed otherwise, if performing works at a Z workplace, Z’s ‘permit to work’ system will take priority over the Supplier’s HSSE policy to the extent there is any inconsistency.

12.4. Authorised contract manager: Z may use an authorised contract manager to manage the Supplier’s compliance with this Purchase Order (including this HSSE clause) on Z’s behalf. In particular, Z may use its contract manager to:

(a) issue instructors to the Supplier on behalf of Z;

(b) make requests to the Supplier on behalf of Z;

(c) monitor some or all of the Supplier’s compliance with this HSSE clause;

(d) ensure the Supplier complies with this HSSE clause.

Unless the context otherwise requires, in this Purchase Order, references to Z include references to Z’s authorised representative. Z may disclose this Purchase Order to its authorised representative. Z may change its authorised representative at any time by notifying the Supplier.

12.5. Authorised Purposes: The Supplier will notify Z of the purposes for which Z may use the Goods supplied by the Supplier (the Authorised Purposes).

12.6. Reporting: The Supplier will monitor and keep adequate records of the Supplier’s compliance with its HSSE obligations under this Purchase Order.

12.7. Assurance: At Z’s reasonable request, the Supplier will provide Z with evidence to Z’s satisfaction (acting reasonably) that the Supplier has complied with its obligations under this clause 12.

12.8. Notifiable Event management: For each Notifiable Event that occurs under or in relation to this Purchase Order, the Supplier will:

(a) inform Z promptly after the time the Notifiable Event occurs;

(b) take all reasonable steps to mitigate the effects of the Notifiable Event and prevent or minimise further health and safety issues;

(c) with the level of Z’s involvement that Z reasonably requests, investigate each Notifiable Event for the purpose of understanding the cause of the Notifiable Event and (so far as is reasonably practicable) preventing the same or a related Notifiable Event occurring in future;

(d) if requested by Z, and with the level of Z’s involvement that Z reasonably requests, create a document that may include the following: identification of actions that the Supplier will take to prevent (so far as is reasonably practicable) a similar or related Notifiable Event occurring in the future, timeframes for completing those action items, and identification of who is accountable for ensuring the completion of those action items (a Notifiable Event Document);

(e) submit each Notifiable Event Document to Z within the timeframes Z reasonably requests;

(f) perform and close the action items described in a Notifiable Event Document or any other action item reasonably requested by Z (each an Action item);

(g) at the times reasonably requested by Z, report to Z on the Supplier’s performance compared to the Action Items.

12.9. Interactions with the Regulator: To the extent permitted by Law, in relation to a request for information or a meeting from the regulator that relates to the Supplier’s Personnel or Z’s staff using the Goods, carrying out work for Z or working at a Z workplace, the Supplier will:

(a) notify Z of the date on which the Supplier will comply with that request and the information that the Supplier will provide to the regulator;

(b) if permitted, keep Z regularly updated of any communication with the regulator including allowing Z or its representatives to attend the meeting with the regulator as an observer; and

(c) not make any admission or compromise for or on behalf of Z.

12.10. Supplier’s Staff:

(a) The Supplier solely will be responsible for managing any if its Personnel’s injury, illness, rehabilitation and/or return to work (as applicable) caused by that Personnel’s use of the Goods or carrying out work for Z.

(b) The Supplier will, before engaging any subcontractor, notify Z in advance, and provide Z reasonable opportunity to assess the Supplier’s systems relating to subcontractor management. Z may require the Supplier to provide Z with assurances that its subcontractors are meeting their HSSE obligations.

12.11. Escalation: If Z considers that the Supplier may not comply or is not complying with its HSSE obligations under this Purchase Order, upon Z’s request, the Supplier will arrange for:

(a) Z’s concerns to be escalated to the appropriate persons within the Supplier’s organisation; and/or

(b) those appropriate persons to meet with Z to discuss whether it is appropriate for the Supplier to continue performing the work and, if so, on what basis.

12.12. Suspension:

(a) If Z considers (acting reasonably) that the Supplier has breached (or is likely to breach) its obligations under this clause 12, Z may, by giving notice to the Supplier, require the Supplier to suspend performance of the work specified in that notice, and the Supplier will comply immediately.

(b) When the matter giving rise to the suspension is resolved to Z’s satisfaction (acting reasonably), Z will notify the Supplier that the suspension has ended.

(c) For the duration of the suspension, Z will not be obliged to pay for any standing or fixed fees that apply to the Services or works to the extent those Services or works were suspended under this paragraph.

12.13. No application: Notwithstanding any other clause in this Purchase Order, the parties agree that no indemnity or insurance obligation of a party applies to any fine or infringement fee payable under the HSW Act.

12.14. Compliance with PCBU Operating Manual: The Supplier must at all times comply with any PCBU Operating Manual issued by Z. Z may issue a new or updated PCBU Manual at any time during the Term of this Agreement. The PCBU Operating Manual will outline the specific HSSE processes, expectations, and operational requirements that are unique to the Supplier. Any PCBU Manual issued by Z must be consistent with the terms of this Purchase Order.

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13. Force majeure

13.1. Where either Z or the Supplier is unable, wholly or in part, by reason of a Force Majeure Event, to carry out any obligations under this Purchase Order and:

(a) that party gives the other party immediate written notice of the nature and expected duration of, and the obligation affected by, the Force Majeure Event; and

(b) that party uses all reasonable endeavours to:

(i) mitigate the effects of the Force Majeure Event on that party’s obligations under this Purchase Order; and

(ii) perform that party’s obligations under this Purchase Order despite the Force Majeure Event, that obligation is suspended for so long as, and to the extent that, it is affected by the Force Majeure Event.

13.2. If by reason of a Force Majeure Event the delay or nonperformance of either Z’s or the Supplier’s obligations continues for more than 30 days, the party not relying on the Force Majeure Event may cancel this Purchase Order by giving 7 Working Days’ written notice to the other party.

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14. Dispute resolution

14.1. Disputes shall:

(a) be referred first for resolution to the representative of each party (or his or her nominee);

(b) if the representatives (or their nominees) cannot resolve the dispute within 2 Working Days of the issue being referred to them (or such longer period as they agree), the dispute shall be referred for resolution to the chief executive (or his or her nominee) of each party; and

(c) if the chief executives (or their nominees) cannot resolve the dispute within 10 Working Days of the issue being referred to them (or such longer period as they agree), the dispute will be resolved under clauses 14.2 to 14.5. 14.2 If the parties fail to resolve the dispute under clause 14.1, the parties will try to settle the dispute by mediation. Either party may initiate mediation after the expiry of the period set out in clause 14.1(c) by giving written notice (the Mediation Notice) to the other party, and:

(d) the mediator must be agreed by the parties or, if the parties cannot agree on a mediator within 5 Working Days after the Mediation Notice has been given, then the parties shall promptly request the chairperson of LEADR New Zealand Inc (or his or her nominee) to select the mediator;

(e) the mediator will set the timetable (including the date by which the mediation will expire irrespective of whether or not the dispute has been resolved, which will not be more than 5 Working Days from the commencement of the mediation); and

(f) if the dispute has not been resolved within the timeframe specified by the mediator, unless the parties otherwise agree, the dispute resolution procedure will cancel and each of the parties will be entitled to pursue such legal remedies as it thinks fit.

14.2. Any discussions or negotiations to resolve a dispute under clause

14.3. or any mediation shall be held in Wellington.

14.4. Except where the dispute renders it impossible to do so (and except for payment obligations in respect of any amounts disputed in an invoice), the parties will continue performing their respective obligations under this Purchase Order while the dispute is being resolved, unless and until such obligations are cancelled or expire in accordance with this Purchase Order. Each party must use all reasonable endeavours to ensure that, where a dispute is reasonably foreseeable, it is dealt with at a sufficiently early stage to minimise the effect on the ability of any party to perform its obligations under this Purchase Order.

14.5. Each party will pay its own costs for resolving any dispute under this dispute resolution procedure, provided that the remuneration of any mediator will be shared equally between the parties.

14.6. Nothing in this Purchase Order will preclude either party from taking immediate steps to seek urgent equitable relief before a Court.

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15. Variations

15.1. Z reserves the right to, and the Supplier agrees that Z may, at any time vary this Purchase Order or any part thereof.

15.2. If such variation(s) cause an increase or decrease in the Supplier’s costs, Z and the Supplier may agree an equitable adjustment to the Price. Any claim by either party for adjustment must be made in writing direct to the other party either prior to delivery or within fourteen days from the date on which such variation was advised, whichever is earlier.

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16. Sustainability

16.1. The Supplier will:

(a) provide the Services in a sustainable, ethical and environmentally responsible manner and in line with Z’s Sustainability Code of Conduct for Suppliers http://z.co.nz/about-z/sustainability/sustainabilitycode-of-conduct-for-Contractors/;

(b) on reasonable request from Z, promptly provide information for the purpose of enabling Z to:

(i) understand and report on Z’s, or the Supplier’s, sustainability performance; and/or

(ii) understand the environmental or social impact of the Services supplied under this Agreement;

(c) engage with Z on a regular basis to discuss both Z’s and the Supplier’s sustainability performance; and

(d) proactively share with Z’s Relationship Manager any suggestions the Supplier has for improvement of its own or Z’s sustainability performance.

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17. Miscellaneous

17.1. Order or precedence: In the event of any conflict, ambiguity or uncertainty between this Purchase Order the order of precedence shall be as follows:

(a) any variations to this Purchase Order;

(b) this Purchase Order;

(c) any other documents or specifications.

17.2. Governing Law: This Purchase Order shall be governed and construed in accordance with the Laws of New Zealand, and the parties submit to the exclusive jurisdiction of the Courts of New Zealand.

17.3. Audit: On not less than 5 Working Days’ notice from Z, the Supplier will give Z and/or its representatives reasonable access to the Supplier’s facilities, premises, systems, records, books, and Personnel, to enable Z to ascertain whether or not the Supplier, the Goods and/or Services comply with this Purchase Order, or where Z reasonably considers that there is a serious risk to the health and safety of any person in relation to this Purchase Order. Z’s rights to access information pursuant to this clause do not extend to access to, or inspection of, the Supplier’s internal financial management information. Z must comply with the Supplier’s reasonable security measures when conducting an audit.

17.4. Liens: The Supplier shall promptly pay when due all obligations for labour and material. The Supplier waives its right to assert any liens, statutory, common law or otherwise, on the facility or the site. The Supplier shall also discharge at once, or secure against, all liens which are filed by its subcontractors on account of labour performed for the Supplier, or supplies provided to the Supplier, in connection with the Goods and/or Services, and shall, to the extent permitted by Law, defend, indemnify and hold harmless Z, from and against all loss, damage, liability and claims resulting directly or indirectly from such liens.

17.5. Waiver: The failure of either party to insist upon strict performance of any of the provisions of this Purchase Order shall not be deemed a waiver of that or any subsequent breach of or default in such terms or conditions.

17.6. Entire Purchase Order: This Purchase Order constitutes the entire agreement between Z and the Supplier in relation to this Purchase Order and supersedes all prior communications, negotiations and agreements (whether oral or written) with respect to the subject matter of this Purchase Order.

17.7. Severability: If any provision of this Purchase Order is held to be invalid, the remainder of this Purchase Order shall remain in full force.

17.8. Contractual Privity: This Purchase Order is not intended to be enforceable by any person who is not a party to it.

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