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 annual MTNZ financial period beginning 1st August
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 set forth in our most
recent Directory of Products & Services
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 by MTNZ.
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 forth in
our most recent Directory of Products & Services
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
(c) a reference to a clause, is to a clause in 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 annually on the 1st August and continue
for the term ending 31st July 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 our most recent Directory of Products &
Services and the terms of this Agreement.
4.1. The Price for the Services will be set by MTNZ. 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. Prices may be
subject to change without notice.
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.
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 a specified MTNZ address.
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.
6.4. MTNZ will test Samples as
received if no customer specific requirements have been defined and agreed to
by both parties.
6.5. The results for the Sample(s)
are on an "as received" basis and do not necessarily represent the
composition of the material the sample was drawn from.
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
(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.
8.3. The Customer acknowledges and
agrees that ownership of sample(s) transfers to MTNZ upon delivery to the MTNZ
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 Part 3 of the
Contract and Commercial Law Act 2017 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. To the extent permitted at law MTNZ will not be liable to the Customer or
any other party for any indirect or consequential loss or damage arising in connection
with this Agreement, or MTNZ's performance of or failure to perform the
Services, including (but not limited to) any loss of profit, business, revenue,
goodwill or anticipated savings and whether arising in contract, tort
(including negligence), equity, breach of statutory duty or otherwise.
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 total liability to the Customer, in connection with this Agreement
or the Services, arising in contract, tort (including negligence), equity,
breach of statutory duty or otherwise
for any kind of loss or damages is limited to an amount equivalent to
the total Price paid by the Customer to MTNZ for the affected testing provided
by MTNZ under this Agreement for 1 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
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
(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
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
(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
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
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
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.