The parties wish to contract for the supply of Services by MTNZ to the Customer in accordance with the terms and conditions set out in this agreement.
The parties agree as follows:
1.1. In this Agreement unless the context otherwise requires:
Agreement means this testing agreement between MTNZ and the Customer.
Business Day means any day that is not a Saturday, Sunday or statutory holiday in Hamilton, New Zealand.
Commencement Date means the date specified in Schedule 1 as the Commencement Date.
Customer means the person purchasing goods and services from MTNZ, or any person acting on behalf of and with the authority of the Customer.
Goods means any goods supplied by MTNZ to the Customer as part of the provision of services as set out in Schedule 1.
GST means goods and services tax chargeable under the New Zealand Goods and Services Tax Act 1985.
Price means the price payable for the Services and Goods as set out in Schedule 1.
Results means all information, notes, reports, analysis, conclusions, recommendations or other work produced by MTNZ in relation to the Services.
Sample(s) means samples provided by the Customer to MTNZ for testing in accordance with this Agreement.
Season means the annual dairy season of 1st June to 31st May.
Services means all services provided by MTNZ to the Customer as set out in Schedule 1.
Termination Notice Period means the notice period referred to in clause 11.
1.2. In this Agreement, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) headings are for ease of reference only and will be ignored in interpreting this Agreement;
(c) a reference to a clause or to a schedule is to a clause in, or a schedule to, this Agreement;
(d) references to currency are to New Zealand currency; and
(e) references to any document include all modifications and replacement documents from time to time.
This Agreement will commence on the date of this Agreement and continue for the term specified in Schedule 1 unless terminated earlier in accordance with the terms of this Agreement.
In consideration of the Customer paying the charges payable under this Agreement to MTNZ, MTNZ shall carry out the Services and provide the Results to the Customer in accordance with Schedule 1 and the terms of this Agreement.
4.1. The Price for the Services will be as set out in Schedule 1. All Prices will be expressed as exclusive of GST and GST will be payable by the Customer in addition to such payments. The Price for any additional services provided by MTNZ will be as quoted by MTNZ to the Customer from time to time.
4.2. Payment for all Services must be made by the Customer to MTNZ on the 20th of the month following the date of MTNZ's invoice.
4.3. If the Customer fails to make payment to MTNZ on the due date then interest calculated at 5% above the average monthly base commercial lending rate from time to time charged by MTNZ's bank, will be payable by the Customer in respect of the unpaid amount from the due date for payment until payment is made in full. Interest will be calculated monthly and payable on demand.
4.4. The Customer indemnifies MTNZ for and against any expenses incurred by MTNZ in the enforcement of any rights under this Agreement or at law, including any reasonable solicitor's fees or debt collection agency fees.
4.5. MTNZ will not be obliged to provide the Customer with Results, Goods or any other services if the Customer has failed to make payment of an invoice within 14 days of the due date for payment of an invoice.
5. PROVISION OF SERVICES
5.1. MTNZ will:
(a) Use all reasonable skill and care in providing the Services and Goods (if any) in a timely and efficient manner.
(b) Not be liable to the Customer for any delay or non-performance in providing Services if the delay is attributable (directly or indirectly) to circumstances beyond its reasonable control.
(c) Not be obliged to accept any order for Services made by the Customer in addition to those Services set out in Schedule 1.
5.2. MTNZ may withdraw a quotation for the provision of Services at any time before it is accepted by the Customer. All quotations will lapse without notice after 30 days.
5.3. The Customer cannot cancel any order for Services (in full or in part) without first obtaining the written consent of MTNZ.
6.1. Samples must be delivered to the MTNZ address as in Schedule 1.
6.2. The Customer must collect Samples in the specific containers that MTNZ requires. The Samples must be labelled in the manner specified by MTNZ from time to time.
6.3. MTNZ will not be responsible or liable for the condition of Samples before they are received by MTNZ in accordance with the delivery provisions in Schedule 1.
7. FORCE MAJEURE
7.1. No party shall be liable to the other party for any failure or delay in complying, wholly or in part, with any obligation imposed on such party under this Agreement if:
(a) the failure or delay arises from a cause beyond that party’s reasonable control and without that party’s fault and such party could not take reasonable measures to prevent or mitigate the effects of such cause (“Force Majeure Event”);
(b) that party promptly gives the other party written notice providing details of the nature, expected duration and effect of the Force Majeure Event and keeps the other party informed of any changes in the nature of the Force Majeure Event and of the cessation of the Force Majeure Event; and
(c) that party uses reasonable endeavours to mitigate the effects of the Force Majeure Event on that party’s obligations under this Agreement.
7.2. Nothing in clause 7.1 shall excuse a party from any obligation to make a payment when due under this Agreement.
7.3. Subject to clause 7.4, no Force Majeure Event will operate to extend or to terminate this Agreement. Performance under this Agreement will resume as soon as possible to the greatest extent possible following the end or amelioration of the Force Majeure Event.
7.4. If a party is unable to comply with any obligation imposed on it under this Agreement as a result of a Force Majeure Event for 20 consecutive Business Days or for an aggregate of 45 Business Days in any six month period, the other party may cancel this Agreement by giving written notice to the other party. Cancellation of this Agreement under this clause shall not prejudice the rights of any party against the other party in respect of any matter or thing occurring under this Agreement prior to cancellation.
8.1. All Goods will remain at MTNZ's risk until delivery to the Customer.
8.2. Delivery of Goods will be deemed to be complete when MTNZ gives possession of the Goods directly to the Customer or via a courier, carrier or other bailee for the purpose of transporting the Goods to the Customer.
9. LIABILITY AND INDEMNITY
9.1. With the exception of express warranties contained in this Agreement, all warranties and representations in respect of the Services and Goods supplied are excluded to the maximum extent permitted by law.
9.2. Notwithstanding any other term in this Agreement:
(a) the parties agree and acknowledge that the Services and/or Goods supplied by MTNZ and acquired by the Customer are supplied or acquired in trade within the meaning of the Fair Trading Act 1986, and that sections 9, 12A, and 13 of the Fair Trading Act 1986 will not apply to this Agreement or as between the parties, and that it is fair and reasonable to exclude their application;
(b) the parties agree and acknowledge that they are both in trade, and that the Products and/or Services supplied by MTNZ and acquired by the Customer are supplied and acquired in trade, that the provisions of the Consumer Guarantees Act 1993 will not apply to these Terms or as between the parties, and that it is fair and reasonable to exclude their application;
(c) the parties agree and acknowledge that the provisions of the Sale of Goods Act 1908 will not apply; and
(d) for the purposes of this clause, the Customer acknowledges that it had a reasonable opportunity to review this Agreement, discuss the Agreement with MTNZ and receive advice from its legal advisor if it wished to do so.
9.3. MTNZ will not be liable to the Customer or any other party for any indirect loss or damage arising directly or indirectly in connection with MTNZ's performance of or failure to perform the Services including (but without limitation) any loss of profit, business, revenue, goodwill or anticipated savings and whether in contract, tort (negligence), for breach of statutory duty.
9.4. To the extent that the liability of MTNZ is not otherwise limited or excluded, and to the extent permitted by law, MTNZ’s aggregate liability to the Customer whether in tort, contract or otherwise for any loss damage or injury in relation to the Services and/or Goods is limited to the Price paid by the Client for those Services and/or Goods in the 12 month period prior to the date giving rise to the Customer’s claim.
10. RFID TAGS
10.1. In the course of supplying Services and Goods to the Customer, MTNZ will provide radio frequency identification tags (RFID tags) which are placed in vials containing the milk samples. The Customer acknowledges and agrees that ownership of the RFID tags will at all times remain with MTNZ. If the Customer ceases to purchase Services from MTNZ, it will return the RFID tags to MTNZ forthwith.
10.2. The Customer agrees to sign any documents and provide any further information required for MTNZ to perfect its security interest in the RFID tags and any Goods supplied by MTNZ and the Customer grants MTNZ a security interest in the same pending payment in full, in the case of the supply of Goods, or the return by the Customer of the RFID tags.
10.3. The Customer waives its right to receive a notice under sections 120 and 148 of the Personal Property Securities Act 1999 ('PPSA') and to object under section 121 of the PPSA. The Customer further agrees sections 114, 125, 129, 133 and 134 of the PPSA do not apply to these terms of trade.
11.1. This Agreement may be terminated as follows:
(a) The parties agree to terminate the Agreement;
(b) One party gives six months prior written notice of termination (which may be without cause) to the other party;
(c) The parties, upon a dispute arising pursuant to this Agreement and following exercise of the dispute resolution procedure set out in clause 14, cannot reach an agreed solution; or
(d) One party is in default of this Agreement for a period of 30 days after receiving written notice of such default by the other party; or
(e) One party goes into liquidation either compulsorily or voluntarily (save for the purposes of reconstruction or amalgamation) or a receiver or manager is appointed in respect of the whole or any part of the party’s assets or the party makes an assignment for the benefit of or composition with its creditors generally or threatens to do any of these things.
11.2. Termination will not affect the rights of either party in respect of any breach of these Terms in existence prior to termination.
12. INTELLECTUAL PROPERTY
12.1. The Customer agrees and acknowledges that MTNZ is the owner of the intellectual property rights in the Results systems, know-how and other intellectual property which may be utilised by MTNZ in the provision of the Services and that the Customer will not obtain any rights and/or interests in such intellectual property by virtue of purchasing Services from MTNZ.
13. CONFIDENTIAL INFORMATION
13.1. Neither party will disclose confidential information pertaining to the other party's business to a third party unless authorised by the other party or required to do so by law.
14. DISPUTE RESOLUTION
14.1. If a party has any dispute with the other party in connection with this Agreement:
(a) That party will promptly give full written particulars of the dispute to the other ; and
(b) The parties in dispute will promptly meet together and in good faith try and resolve the dispute.
14.2. If the dispute is not resolved within 14 days of written particulars being given (or any longer period agreed to by the parties in dispute) the dispute will be referred to mediation.
14.3. A party must use the mediation procedure to resolve a dispute before commencing arbitration or legal proceedings.
14.4. The mediation procedure is:
(a) The parties in dispute will appoint a mediator and if they fail to agree the President of the New Zealand Law Society or the President’s nominee will appoint a mediator skilled in the area of the dispute who is a panel member of LEADR (Lawyers Engaged in Alternative Dispute Resolution).
(b) The parties in dispute must co-operate with the mediator in an effort to resolve the dispute.
i. The mediator, if required by either party in the dispute, will engage an appropriately qualified expert to give an opinion on technical matters. The cost will be at a mediator’s cost (clause b (iv)).
ii. If the dispute is settled, the parties in dispute must sign a copy of the terms of the settlement.
iii. If the dispute is not resolved within 21 days after the mediator has been appointed, or within any extended time that the parties in dispute agree to in writing, the mediation must cease.
iv. Every party must pay an equal share of the costs of the mediator’s fee and costs including travel, room hire, refreshments etc.
14.5. The terms of settlement will be binding on the parties in dispute.
14.6. The terms of settlement may be tendered in evidence in any arbitration or legal proceedings (whether the subject matter of the proceedings relates to the settlement or not)
14.7. The parties in dispute agree that written statements given to the mediator or to one another and any discussions between the parties in dispute or between the parties in dispute and the mediator during the mediation period are not admissible by the recipient in any arbitration or legal proceedings.
14.8. Any party may commence court proceedings when mediation ceases under this clause.
14.9. Neither party will unreasonably delay the dispute resolution procedures in this clause. This clause does not apply to:
(a) Any dispute arising in connection with any attempted re-negotiation of this Agreement; or
(b) An application by either party for urgent interlocutory relief.
14.10. The parties agree that if there is a dispute, MTNZ will continue to process and analyse incoming Samples and the Customer will continue payment without deduction or set off for processing and analysis of such Samples pending resolution of the dispute, subject to the parties complying with the dispute resolution provisions set out above.
15.1. The Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of MTNZ. A change in more than 50% of the composition of the person or persons having management or directorial control of the Customer as at the date of this Agreement will be deemed to be an assignment for the purposes of this clause. The person or persons proposing to assign their interest in the Customer will remain liable to MTNZ pursuant to this Agreement pending the provision by MTNZ of its written consent to the assignment.
15.2. Every notice given under this Agreement will be sufficiently given if delivered personally, posted or successfully transmitted by fax to the intended recipient at his/her or their last known address or facsimile number.
15.3. Failure by MTNZ to enforce any of the terms and conditions contained in this Agreement will not be deemed to operate as a waiver of any of MTNZ's rights.
15.4. If any provision of this Agreement will be deemed invalid, void, illegal or unenforceable then the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
15.5. Neither party will be liable for any delay or failure for the performance of any of the obligations imposed on them under this Agreement if such failure is beyond the reasonable control and without fault or negligence of that party. This clause will not extend to excuse the consequences of insolvency or financial difficulty.
15.6. This Agreement constitutes the entire agreement between the parties which supersedes any prior arrangement or understanding whether written or oral relating to the subject matter of this agreement.
15.7. This Agreement will be governed by the laws in New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.
15.8. The Customer acknowledges that MTNZ has entered into a strategic alliance with Analytica Laboratories Limited (“Analytica”) and under that alliance Analytica may perform some of the Services for and on behalf of MTNZ.
15.9. The Customer will be deemed to have accepted the terms of this Agreement upon delivering a Sample to MTNZ.