Terms and Conditions

Business Day means a day of the week other than—

(a) Saturday, Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s Birthday, and Labour Day; and

(b) if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and

(c) a day in the period commencing with 25 December and ending with 2 January in the following year; and

(d) the day observed as the anniversary of any province in which an act is to be done.

Confidential Information means:

(a) all information of, used by, related to or connected with MVM or its transactions, operations and affairs;

(b) all other information treated by MVM as confidential;

(c) all information is given to the Supplier by MVM, or its employees, agents or advisers on a confidential basis;

(d) the existence and the terms of these Terms; and

(e) all notes, data, reports and other records (whether or not in tangible form) based on, incorporating or derived from information referred to in any of paragraphs (a) to (d) above and any copies of the same, which is not in the public domain (otherwise than as the direct or indirect result of a breach of a confidentiality obligation of a party).

Delivery is deemed to have occurred:

(a) in relation to Goods, when the Goods have been delivered to the address specified in the Purchase Order in good order and condition and MVM has accepted the Goods without rejecting them under clause 6; and

(b) in relation to Services, when the Services to be performed under the Purchase Order have been completed to the satisfaction of MVM.

Goods mean any goods supplied to MVM by the Supplier (including any replacement Goods) under these Terms.

Intellectual Property means all intellectual property rights including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, procedures, calculations and all other statutory and common law rights and interests.

MVM means Mataura Valley Milk Limited.

PPSA means the Personal Property Securities Act 1999.

Price has the meaning given in clause 3.1.

Purchase Order means a purchase order for Goods or Services submitted by MVM to the Supplier on a template developed by MVM.

Services mean any service provided by the Supplier to MVM including, but not limited to, engineering and IT Services.

Supplier means any person or entity who is engaged by MVM to supply Goods or perform Services and includes any employees, agents, or subcontractors of the Supplier.

Terms mean these Terms of Supply as amended from time to time in accordance with clause 21.4 and include any Purchase Order issued by MVM to the Supplier.

2.2 MVM may order Goods or Services by sending a Purchase Order to the Supplier. If the Supplier does not raise any objection to a Purchase Order within 2 Business Days of deemed receipt under clause 19, the Supplier shall be deemed to have accepted the Purchase Order.

2.3 Any specific terms of a Purchase Order set out by MVM shall prevail in the event of a conflict with these Terms.

2.4 Any forecast volumes for a number of Goods or forecast requirements for Services required by MVM are indicative only and MVM shall not be bound to order such quantity of Goods or engage such Services.

2.5 Nothing in these Terms obliges MVM to issue the Supplier with any Purchase Orders or procure any particular quantity of Goods or Services from the Supplier and the arrangements between the Supplier and MVM are non-exclusive.

3.1 The price payable for Goods or Services (“Price”) shall be that pricing agreed to in writing between the parties as at the date of these Terms.

3.2 Unless agreed otherwise in writing or specified in the Purchase Order, the Price specified in the Purchase Order shall be:

(a) in New Zealand dollars;

(b) exclusive of GST, but inclusive of all other duties, taxes or charges; and

(c) inclusive of all costs incurred in Delivery of the Goods (including freight and packaging costs) or Services (including physical labour and installation costs if applicable).

3.3 Prior to effecting any change in pricing of Goods or Services, the Supplier must give to MVM 20 Business Days prior written notice. Any increase in Price shall only be effective as at the expiry of the notice period in this clause 3.3.

3.4 Unless otherwise agreed in writing, MVM will pay the Supplier the Price (or any alternative price agreed in writing) by the last Business Day of the month following that in which the Goods or Services have been delivered or MVM receives from the Supplier a valid tax invoice containing the Purchase Order number.

3.5 The Supplier may not issue an invoice to MVM for Goods or Services that have been rejected in accordance with clause 6.

3.6 Unless otherwise agreed in writing, the supplier must send all invoices to MVM electronically in PDF format to accountspayable@mataura.com and copy the MVM purchasing contact. The invoice will be not be considered to be received by MVM until it is receipted into the accountspayable@mataura.com inbox.

3.7 MVM may reasonably dispute an invoice by giving notice to the Supplier and withhold payment or part-payment of an invoice it has reasonably disputed until the dispute is resolved, provided that MVM shall pay the undisputed part of an invoice (if any) pending resolution of the dispute. No interest will be payable by MVM to the Supplier on any amount withheld under this clause or on any other amount not paid when due.

4.1 MVM may deduct from any amount it owes to the Supplier an amount equal to any payment made to the Supplier in excess of what was owed to the Supplier at that time.

4.2 MVM must notify the Supplier of any deduction MVM claims under this clause.

4.3 The exercise of MVM’s rights under this clause shall not limit or affect any other remedies available to MVM.

5.1 The Supplier must deliver the Goods or Services:

(a) on the delivery date specified in the Purchase Order (if any) or such other time as is notified in writing by MVM. If no delivery date is specified then the time for Delivery shall be as soon as reasonably practicable as demand permits provided that where Services are to be performed, the Supplier must coordinate with MVM as to MVM’s preference of delivery date and time;

(b) to the delivery address specified in the Purchase Order;

(c) with appropriate documentation giving sufficient details of any and all Goods (including the Purchase Order number).

5.2 The Supplier must ensure that the Goods are adequately packed for protection against damage during delivery and in accordance with best practice and industry standards as applicable to the Goods and if requested by MVM, provide to MVM written acknowledgement that packing has been completed to the satisfaction of the Supplier.

5.3 The Supplier must ensure that the Goods are not carried with any other products or items of whatever nature that might contaminate, taint or otherwise adversely affect or damage the Goods.

5.4 The Supplier must obtain signed acknowledgement of receipt from MVM immediately on delivering the Goods; however, such acknowledgement shall not be deemed to be acceptance of either the quality or quantity of the Goods.

5.5 The Supplier must ensure that the Goods are deposited securely at the delivery address and in a manner that provides reasonable protection from damage.

5.6 MVM will not accept any part deliveries unless otherwise agreed in writing between the parties.

5.7 Unless otherwise agreed, all cartons, parcels or palletised stock must clearly state the Purchase Order number, description and quantity of the Goods.

5.8 The Supplier must provide the Goods or perform the Services in accordance with the specifications in the Purchase Order and may not substitute or vary the specific goods or services required by MVM without the prior consent of MVM (such consent may be given or withheld in MVM’s sole discretion).

6.1 The following Goods are deemed to be “Defective Goods”:

(a) Goods having any defect;

(b) Goods supplied to MVM for which MVM did not provide a Purchase Order;

(c) Goods supplied in a different quality or quantity than specified in the Purchase Order; or

(d) Goods delivered otherwise than in accordance with these Terms.

6.2 MVM may, at its option, reject Defective Goods in whole or in part, require the Supplier to supply replacement Goods meeting the specifications of the Goods described in the Purchase Order, or terminate the Purchase Order by giving notice to the Supplier and specifying the reason(s) for rejection.

6.3 Where MVM rejects Defective Goods:

(a) MVM will return the Defective Goods to the Supplier at the Supplier’s cost; and

(b) MVM shall not be required to pay the Price (other than for any replacement Goods), and the Supplier must refund any payments made by MVM for the Defective Goods and indemnify MVM for any costs incurred by MVM as a result of the Defective Goods.

7.1 The Supplier must use best endeavours to deliver the Goods and/or Services on the delivery date specified in the Purchase Order, but immediately upon the Supplier becoming aware that performance of an obligation to MVM may not be met by the required date, the Supplier must promptly notify MVM of:

(a) the cause of the delay;

(b) the effect of the delay;

(c) the steps the Supplier has taken to minimise the delay; and

(d) any extension of time required by the Supplier to meet its obligations.

7.2 MVM may in its sole discretion grant an extension request by the Supplier in accordance with clause 7.1 subject to any conditions MVM reasonably considers necessary (including, but not limited to, payment of compensation to MVM for any unavoidable costs incurred due to the delay).

7.3 If the Supplier fails to notify MVM of the delay in accordance with this clause, or if MVM does not agree to any extension request, the Supplier must continue to perform its obligations according to the Purchase Order excepting that MVM may terminate the Purchase Order by giving 3 Business Days’ notice to the Supplier if Delivery has not been completed when required.

8.1 Title in the Goods and risk of loss or damage to the Goods passes to MVM on Delivery.

8.2 For the avoidance of doubt, clause 8.1shall not apply to rejected Defective Goods, in which case title and risk shall be deemed never to have passed to MVM.

8.3 Unless otherwise agreed in writing, the Supplier must maintain public liability, professional indemnity and product liability insurance cover with a minimum indemnity value of $2,000,000.00 per claim made (or such higher amount as MVM may reasonably require), in each case with a reputable insurer with a Standard & Poor’s rating of no less than “BBB” for the period in which the Supplier is supplying the Goods or Services to MVM and for at least 12 months following Delivery. The Supplier shall supply such evidence of the insurances required to be held by it under this clause 8.3 as MVM reasonably requires upon request by MVM.

9.1 If a Purchase Order or these Terms permit the Supplier to have a security interest in any Goods supplied to MVM, then the Supplier agrees that notwithstanding the terms of the security interest:

(a) The Supplier contracts out of sections 108, 109, 111(1), 112 and 120(1) of the PPSA; and

(b) Without limiting the above, the Supplier shall not have any right to enter upon any MVM premises at any time to take possession of any Goods whether or not the Goods are “at-risk” as that term is defined in the PPSA.

10.1 The Supplier warrants that:

(a) the Supplier has the right to sell the Goods to or perform the Services for MVM under these Terms;

(b) MVM will have undisturbed possession of the Goods supplied to MVM by the Supplier; and

(c) the Goods are free from any encumbrance at the time title in the Goods passes to MVM under clause 8.

10.2 The Supplier warrants that the Goods:

(a) are free from material defects;

(b) are unused on Delivery and, where a shelf-life applies, at least 75% of such shelf-life remains upon Delivery;

(c) are reasonably fit for their purpose (including any particular purpose made known to the Supplier by MVM prior to Delivery);

(d) are of good merchantable quality;

(e) comply with any description or sample given or demonstrated to MVM;

(f) perform the facilities and functions set out in MVM or the Supplier’s specifications; and

(g) do not infringe any patent, trademark or other Intellectual Property rights of a third party.

10.3 The Supplier warrants that the Services:

(a) are provided in a proper, professional and workmanlike manner and with that degree of skill, care and diligence that would be exercised by a prudent person engaged in the same trade as the Supplier; and

(b) are provided by personnel that have the appropriate knowledge, qualifications, training, skills and experience appropriate for the provision of the Services.

10.4 The Supplier must ensure that all vehicles or equipment used by the Supplier in the provision of the Goods or Services are maintained and serviced in accordance with manufacturer’s recommendations and industry standards.

10.5 The Supplier warrants the Goods supplied and/or Services performed against faulty design, workmanship and materials for 12 months following Delivery.

10.6 Where MVM considers a breach under this clause 10 to have arisen following Delivery during the applicable timeframe, MVM shall give such details as the Supplier requires to assess MVM’s claim. MVM may at its option, require replacement Goods or Services to be provided at the Supplier’s sole cost or require a refund to be given to MVM for the Price of the Goods or Services.

10.7 The Supplier must, to the extent possible, pass on to MVM the benefit of any warranty or guarantee received by the Supplier from any other person relating to the Goods or Services.

10.8 The parties agree that for the purposes of these Terms, the Goods and/or Services are both supplied and acquired in the trade for the purposes of the Fair Trading Act 1986.

11.1 If requested by MVM, the Supplier shall supply a sample of the Goods described in the Purchase Order to be used as a quality standard reference prior to production or delivery of the Goods described in the Purchase Order.

11.2 MVM may have the Goods inspected or tested at any time prior to delivery, provided that any inspection or testing or omission to do so by MVM shall not constitute acceptance of any Defective Goods and shall not affect the right of MVM to reject Goods in accordance with clause 6, notwithstanding MVM’s knowledge, inspection or testing of the Goods or its failure to do so, or the ease of discovery of any defects in the Goods.

12.1 The Supplier must keep records and ensure any subcontractors approved in accordance with clause 21.5 keep records as necessary to demonstrate compliance with these Terms.

12.2 MVM may upon 24 hours’ notice, access the Supplier’s records for the purposes of auditing the records to:

(a) verify the accuracy of any invoice issued in connection with a Purchase Order; and

(b) audit the Supplier’s compliance with these Terms.

13.1 The Supplier shall comply and shall ensure that its employees, subcontractors and agents comply, with all health and safety, security, operational and site procedures, including completion of a health & safety induction, required by MVM while present at any premises from which MVM operates.

13.2 The Supplier must comply and ensure that the Goods or Services supplied in connection with any Purchase Order comply with all applicable laws (including laws relating to the protection of personal information and privacy) when performing the Services or providing Goods under Purchase Orders.

13.3 In the event that the Supplier breaches clauses 13.1 or 13.2, in addition to any other rights under these Terms, MVM may immediately suspend the work associated with the relevant Purchase Order under which the breach occurred. Any such suspension shall not be lifted until the breach is remedied.

14.1 The Supplier indemnifies MVM from and against all costs, claims, damages, losses, liabilities and expenses (including legal expenses on a solicitor and client basis), arising directly or indirectly from:

(a) breach of one or more of the warranties in clause 10; and

(b) the negligence, wilful act or omission of, or breach of these Terms by, the Supplier or the Supplier’s employees, agents, subcontractors or advisers.

14.2 To the extent permitted by law, no limit or exclusion of the Supplier’s liability will be effective, whether express, implied or by virtue of statute.

15.1 In respect of Intellectual Property used in or arising from the production of the Goods or the performance of Services:

(a) all pre-existing Intellectual Property the subject of an Intellectual Property right resides with the owner as at the date of these Terms (whether the Supplier or MVM);

(b) any new Intellectual Property created in the production of goods ordered by MVM shall:

(i) be deemed to be created in pursuance of the commission provided by MVM under these Terms pursuant to section 21(3) of the Copyright Act 1994; and

(ii) give rise to the right for MVM to apply for a patent to such new Intellectual Property pursuant to section 22(b) of the Patents Act 2013.

15.2 If any Goods are to be supplied or Services are to be undertaken based on the Supplier’s designs, the Supplier warrants that the use of the Goods or Services by MVM will not infringe any third party’s Intellectual Property rights and the Supplier indemnifies MVM against any loss, liability, costs and expenses in the event of any claim being made that the Goods or Services infringe any patent, copyright or other rights of any other person.

16.1 MVM may in addition to any other right of termination or remedy conferred upon MVM under these Terms or by law, terminate any Purchase Order for undelivered Goods or unperformed Services upon 10 Business Days’ written notice to the Supplier at any time prior to Delivery.

16.2 MVM may terminate these Terms on 10 Business Days’ written notice if:

(a) the Supplier breaches these Terms and fails to remedy the breach within 10 Business Day’s written notice by MVM requiring the breach to be remedied;

(b) the Supplier ceases or threatens to cease carrying on business;

(c) the Supplier becomes insolvent or bankrupt;

(d) the Supplier has a receiver or manager appointed in relation to all or part of its assets, commences liquidation or placed in statutory management; or

(e) there is a material adverse change in the financial circumstances of the Supplier.

16.3 Termination of a Purchase Order does not affect any responsibilities which are intended to continue or come into effect after the Purchase Order terminates.

17.1 If a dispute arises under or in connection to these Terms, the parties must first try to resolve the dispute by attending at least one meeting to resolve

18.1 These Terms shall prevail over the terms contained in the standard conditions of sale, invoices, packing slips, delivery dockets, standard form licences or any other communication from either party or its contractors, even if at some later date the other party signs or otherwise purports to accept the terms of that communication.

19.1 Each notice or other communication is to be made in writing, personal delivery, electronic mail or by post to the addresses designated for that purpose by the other party.

19.2 No communication shall be effective until received. Communication to the other party will be deemed to be received:

(a) in the case of a letter, on the third Business Day after posting; and

(b) in the case of electronic mail, on the Business Day on which it is despatched or, if despatched after 5 p.m. (in the place of receipt) on the next Business Day after despatch; and

(c) in the case of personal delivery, when delivered.

20.1 The Supplier must treat all Confidential Information as strictly confidential at all times and only use it to the extent required for the proper performance of any Purchase Order or these Terms.

20.2 The Supplier may only disclose Confidential Information to its directors, employees, subcontractors and professional advisers who need to know the information for the purposes of the provision of the Goods or performance of Services.

20.3 This clause shall survive the termination or cancellation of these Terms.

21.1 These Conditions of Supply shall be construed in accordance with the laws of New Zealand. The New Zealand Courts will have non-exclusive jurisdiction in respect of these Terms. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the supply of goods from the Supplier.

21.2 If any provision of these Terms is or becomes invalid or unenforceable, that provision will be deemed deleted from these Terms and such invalidity or unenforceability will not affect the other provisions of these Terms, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provisions.

21.3 No failure or delay on the part of either party in exercising any right under these Terms shall operate as a waiver of, or impair, any such rights.

21.4 MVM reserves the right to amend these Terms at any time by giving written notice to the Supplier or updating its website (www.mataura.com) and/or notifying the Supplier of the same. The amended Terms shall apply in respect of all subsequent Purchase Orders after notification of the amended Terms.

21.5 The Supplier shall not assign any of its rights or obligations, or subcontract any of its obligations under these Terms or a Purchase Order without obtaining the prior written consent of MVM (such consent may be given or withheld in MVM’s sole discretion).

21.6 MVM may assign any or all of its rights or obligations under these Terms or a Purchase Order without the Supplier’s consent, and no change in control resulting in the change in the legal or beneficial ownership of MVM howsoever arising shall require the Supplier’s consent.