MVM - TERMS AND CONDITIONS OF SUPPLY
1. APPLICATION OF THESE TERMS
1.1 All sales and supplies of Products by MVM to the Purchaser shall be subject to these Terms unless MVM expressly agrees otherwise in
1.2 All other terms and conditions of sale are excluded, including without limitation any terms and conditions which the Purchaser purports to apply under any purchase order, Sales Order Confirmation or otherwise.
1.3 MVM reserves the right to amend these Terms at any time by giving written notice to the Purchaser or updating its website (www.mataura.com) and/or notifying the Purchaser of the same. The amended Terms shall apply in respect of all subsequent requests for the supply of Products after notification of the amended Terms.
2. QUOTATIONS AND PURCHASE ORDERS
2.1 All price lists and quotations for any supply of MVM’s Products are subject to these Terms. MVM may amend or withdraw price lists or quotations for the supply of Products at any time. Unless MVM expressly agrees in writing to hold the price of Products for a specific period, then:
(a) any prices provided by MVM to a Purchaser are indicative only, and MVM may vary price lists at any time in accordance with any variation of the GDT Price Index; and
(b) quotations lapse 7 days after MVM has issued the quotation, without the need for MVM to inform the Purchaser of such lapse.
2.2 Notwithstanding clause 2.1, MVM may at its sole discretion accept a Purchase Order submitted to MVM by the Purchaser which has been placed after the relevant price list or quotation has been superseded or has lapsed.
2.3 Neither these Terms, nor any price list or quotation given by MVM, constitutes an offer (capable of acceptance) or an agreement by MVM to supply Products. A Purchase Order is an offer to purchase the relevant Products subject to these Terms. MVM may at its sole discretion accept or reject any Purchase Order made by the Purchaser.
2.4 Unless MVM otherwise agrees in writing, these Terms constitute the entire understanding and agreement between the parties as to any supply of Products and related matters. All previous negotiations, understandings, representations, warranties, memoranda, commitments or agreements in relation to, or in any way affecting, the subject matter of these Terms are merged with these Terms and are of no further effect whatsoever and no party will be liable to any other party in respect of such matters. No oral explanation or information provided by any party or its employees or agents to another affects the meaning or interpretation of these Terms or constitutes any collateral agreement, warranty or understanding.
3. SALES ORDER CONFIRMATION
3.1 Subject to clauses 3.4 and 3.5, a Purchase Order is accepted by MVM when MVM issues a Sales Order Confirmation or, in the absence of a Sales Order Confirmation, by Delivery of the Order which shall be deemed to be carried out subject to and in accordance with these Terms.
3.2 A Sales Order Confirmation may contain additional terms which may vary or conflict with these Terms. Those additional terms would supersede these Terms unless MVM gives the Purchaser notice to the contrary in writing, subject to clause 2.4.
3.3 Any arrangement between MVM and the Purchaser to supply Products does not constitute an offer or agreement for any recurring supply of Products on the same terms and conditions unless MVM otherwise agrees in writing.
3.4 A Sales Order Confirmation shall only be valid if it is issued by MVM’s General Manager of Global Sales or authorised designee.
3.5 MVM reserves the right at its sole discretion to correct any errors or misdescriptions contained in a Purchase Order during its issue of a Sales Order Confirmation or at any time prior to Delivery.
3.6 For the avoidance of doubt, MVM is not required to deliver any Products to a Purchaser if the Purchaser does not submit a Purchase Order to MVM, notwithstanding any existing contracts for supply of Products that may exist between MVM and the Purchaser.
4. PRODUCT SHIPMENT AND DELIVERY
4.1 Subject to the remainder of this clause 4, MVM will supply Products to the Purchaser in accordance with these Terms and:
(a) where MVM provides a transport schedule to the Purchaser, MVM will use all reasonable endeavours to complete Delivery no later than 30 days after each specified shipment date (and no earlier than 20 days before such date); or
(b) in the absence of a transport schedule, MVM will use all reasonable endeavours to complete Delivery no later than 30 days after the expiry of the estimated delivery period specified in the relevant Sales Order Confirmation.
4.2 Unless the Incoterms specified in the Sales Order Confirmation provide otherwise, or if otherwise agreed in writing by MVM, the Purchaser shall be solely responsible for meeting (at its sole cost) all import and other regulatory costs and requirements (including those relating to consumer product safety) relating to the Order in the relevant territory or territories.
4.3 Notwithstanding the applicable Incoterms (if any), if the Purchaser directs MVM to arrange shipment of the Order to another party that is not the Purchaser, the Purchaser shall not be released from any of its obligations to MVM.
4.4 The Purchaser may not cancel an Order once MVM issues a Sales Order Confirmation or Delivers an Order to the Purchaser, unless otherwise agreed by MVM.
(a) the Purchaser cancels or delays the shipment of any Order;
(b) MVM cancels any Order in exercise of its rights pursuant to clause 9;
(c) the Purchaser requests that an Order is diverted after the issue of the Sales Order Confirmation; or
(d) any Order is otherwise delayed as a result of the acts or omissions of the Purchaser;
MVM may charge the Purchaser for any reasonable costs incurred by MVM whether directly or indirectly in relation to such cancellation, delay or diversion, including but not limited to storage, packaging, loss of value in the Products contained in the Order, lost profits and any other losses or costs at MVM’s discretion, without prejudice to any other of MVM’s rights or remedies.
4.6 MVM may require the Purchaser to produce evidence of transit insurance taken out by the Purchaser in respect of any Order prior to dispatch.
4.7 In the event that MVM is unable to complete Delivery within the time periods specified in clause 4.1 for any reason (including the unavailability of any Products or component materials), MVM may choose to offer to supply the Purchaser with substitute or alternative Products with the written agreement of the Purchaser. If the Purchaser does not agree to MVM supplying substitute or alternative Products, MVM may cancel the Order with no further liability.
4.8 Subject to any Incoterms specified in a Sales Order Confirmation, Delivery will be deemed to have occurred when the Purchaser or its employees, contractors or agents collects the supplied Products; or when MVM dispatches supplied Products from MVM’s premises, unless MVM otherwise agrees in writing.
4.9 MVM may complete Delivery of any Order in one or more shipments at its discretion.
4.10 MVM is not liable to the Purchaser for any delay of Delivery caused by any factors outside of MVM’s reasonable control.
5. DEFECTS AND ACCEPTANCE
5.1 The Purchaser shall inspect the Products supplied within the Inspection Period.
5.2 Subject to clause 11.2, the Purchaser shall notify MVM in writing immediately upon becoming aware of defects in any of the Products or any other dispute in relation to the Products, which becomes, or ought reasonably to have become, apparent during the Inspection Period. The Purchaser must include such reasonable information required to establish the veracity of any claim including but not limited to the Product(s) description, the alleged defect or damage and all shipment documentation relating to those Products or the Order.
5.3 The burden of proving the existence of any defects or disputes in an Order or Products lies with the Purchaser.
5.4 MVM is not liable for any defect in or damage to any Products or their packaging or storage, or in relation to any other dispute in respect of the Products (in which case those Products will be deemed to have been delivered by MVM and accepted by the Purchaser in compliance with these Terms):
(a) if MVM does not receive and the Purchaser fails to submit a written claim within the Inspection Period;
(b) to the extent the Purchaser has caused or contributed in any manner to the claimed defect;
(c) if the Products have not been stored, cared for or applied in a proper manner as may be reasonably required in the context of the nature of the Products, including if the Products have not been properly stored by the Purchaser at the appropriate core storage temperature;
(d) if the Products are incorporated into, mixed with or affixed to any other products, or used in any process; or
(e) which arises after the expiry date of the relevant Products.
5.5 If MVM accepts responsibility for any defects in the Products, the Purchaser shall fully comply with MVM’s directions in relation to any recalls or withdrawals from sale of Products, or the destruction of the defective Products with the objective being to optimise both parties’ reputation and goodwill whilst ensuring public health and safety is maintained at all times.
5.6 If MVM accepts responsibility for any defects in the Products, its liability is subject to clause 11.3.
6. RISK AND TITLE
6.1 Subject to the provisions of any Incoterms specified in a Sales Order Confirmation or unless otherwise agreed by MVM in writing, risk in all Products passes to the Purchaser on Delivery even though title may not. The Purchaser shall assume absolute responsibility for the storage, insurance and application of Products at and after Delivery.
6.2 The Purchaser assigns to MVM the right to receive insurance proceeds for any insurance claims made in respect of Products that are at the Purchaser’s risk until title to the Products has passed to the Purchaser.
6.3 Unless MVM otherwise agrees in writing, MVM reserves ownership and title to all supplied Products, including where such Products are mixed with other products. Clear title to a Product passes from MVM to the Purchaser upon receipt by MVM of payment in cleared funds for all amounts owed by the Purchaser for the relevant Order received by MVM together with any interest payable by the Purchaser that may accrue up to the point of payment.
6.4 Clause 6.3 creates a security interest pursuant to the PPSA in Products supplied by MVM to a Purchaser:
(a) the Purchaser shall not grant any other security interest or any lien over Products that MVM has a security interest in.
(b) at MVM’s request the Purchaser shall promptly sign any documents and do anything else required by MVM to ensure MVM’s security interest constitutes a first ranking perfected security interest in the Products.
(c) MVM may at any time enter the Purchaser’s premises and properties to uplift Products that MVM has a security interest in.
(d) if Products that MVM has a security interest in are processed, included or dealt with in any way causing them to become mixed products or goods, MVM’s security interest will continue in the whole in which they are included. The Purchaser shall not grant any other security interest or any lien in either the Products, or in the whole.
(e) the Purchaser waives any rights it may have under sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133, and 134 of the PPSA.
(f) the Purchaser waives its right to receive a copy of any verification statement (as that term is defined in the PPSA).
(g) the Purchaser shall give MVM prior written notice of any proposed change of the Purchaser’s name or address.
7. PRICE AND TAXES
7.1 All Orders are subject to the Incoterms specified in the Sales Order Confirmation unless otherwise advised by MVM in writing to the Purchaser.
7.2 Unless otherwise specified, the total amount payable for the Products contained in each Order will be the aggregate of:
(a) the price for the Products, as set out in the Sales Order Confirmation for that Order; plus
(b) any additional amounts for any incidental services which the Purchaser has requested from MVM, as set out in the Sales Order Confirmation.
7.3 Unless otherwise specified by MVM:
(a) any reference to an amount payable or consideration to be provided in respect of an Order to be made by MVM that is governed by or otherwise connected with these Terms is a reference to that amount or consideration excluding any applicable GST; and
(b) the amount to be paid or other consideration to be provided to MVM in respect of any supply for the purposes of the Goods and Services Tax Act 1985 that is governed by or otherwise connected with these Terms must be increased by an amount equal to any GST that MVM is or will become liable to pay in respect of that supply so that MVM retains, after payment of GST the amount which it would have been entitled to receive but for its obligations to pay any GST.
7.4 The GST will be due and payable by the Purchaser to MVM on the date the payment in relation to which the GST is levied is due, in accordance with these Terms.
7.5 If MVM becomes liable to pay any other tax, duty, tariff or other levy in connection to a supply of Products to the Purchaser, the Purchaser shall pay these costs or promptly pay the same to MVM upon receipt of an invoice at MVM’s discretion.
8. TERMS OF PAYMENT
8.1 MVM shall not be required to ship or arrange to be shipped an Order until the Purchaser pays the specified price in full to MVM in cleared electronic funds together with any other associated costs for the supply of the Products except where MVM otherwise agrees in writing.
8.2 MVM’s invoices shall prescribe a due date for payment.
8.3 MVM reserves the right to vary the payment terms for any Order at its sole discretion by giving written notice to the Purchaser which shall supersede and replace any prior payment arrangements or these Terms.
8.4 Where MVM agrees that the basis for Delivery is CIF (Incoterms) MVM will, promptly upon issue of the Transport Documentation, render the Purchaser a CIF Invoice which must be accompanied by the Transport Documentation and a copy of the relevant insurance policy. The Purchaser agrees to pay MVM the price specified in the CIF Invoice including the applicable insurance and freight costs on or before the date that is 30 days after the date of issue of the Transport Documentation unless MVM has stated a different date for payment in the applicable Sales Order Confirmation.
8.5 Where MVM agrees that the basis for Delivery is FAS (Incoterms), MVM will, promptly following delivery of the Products, render the Purchaser an FAS Invoice. The Purchaser agrees to pay MVM the price specified in the FAS Invoice on or before the date that is 30 days after the Products are Delivered to the Purchaser in accordance with clause 4.8, unless MVM has stated a different date for payment in the applicable Sales Order Confirmation.
8.6 The Purchaser will make all payments to MVM in USD.
8.7 MVM may at its sole discretion permit the Purchaser to pay for Products by the below methods of credit. MVM may, at any time with notice to the Purchaser, refuse or withdraw its offer of credit and require the Purchaser to enter into a separate form of credit agreement on terms satisfactory to MVM.
8.8 Where MVM agrees that payment for Products may be:
(a) by letter(s) of credit (“L/C”) the Purchaser must arrange for the L/C to be issued in favour of MVM in a form, content and from an issuing bank that are all acceptable to MVM in its absolute discretion;
(b) by documentary collection, documents will be tendered against payment (“D/P”) subject to the ICC Uniform Rules for Collections which are in force from time to time; and
(c) supported by a bank guarantee or standby L/C, the Purchaser must provide a first demand bank guarantee or standby L/C in a form and content and from an issuing bank that are all acceptable to MVM in its absolute discretion.
(d) Unless MVM otherwise agrees in writing, MVM must receive any advance payment, L/C, bank guarantee, standby L/C or deposit before MVM will commence processing a Purchase Order. Notwithstanding the previous sentence, where MVM has agreed in writing that the Purchaser will pay for Products based on the bill of lading date for those Products, MVM must receive payment by that agreed date. MVM may, without prejudice to its other rights, refuse to commence an Order unless the Purchaser has duly complied with the relevant requirements.
8.9 Payment of all invoices must be received on the earlier of the specified due date or within 30 days of invoice in full without deduction, set-off or counterclaim.
8.10 The Purchaser must give MVM written notice within 7 days of receiving the invoice if it believes that the invoice is not correct. The notice must include full details of the error(s) claimed. If MVM has not received a valid notice of the error(s) within 7 days of the Purchaser receiving the invoice, the Purchaser must treat the invoice as correct and must make payment of the amount due on the invoice on the due date.
9.1 The Purchaser will be in Default if:
(a) the Purchaser fails to pay an amount due under these Terms by the due date for payment; or
(b) the Purchaser commits a breach of any of the Purchaser’s other obligations under these Terms, the Security, MVM’s terms of credit, or the terms of any other contract the Purchaser has entered into, or enter into in the future, with MVM or one of MVM’s related entities; or
(c) the Purchaser suffers an Insolvency Event;
(d) the Purchaser places Products that MVM has retained title to at risk, in the opinion of MVM; or
(e) an event or a series of events (whether related or not) occurs which, in MVM’s opinion, may cause a material adverse change in the Purchaser’s ability to meet its obligations to MVM.
9.2 If the Purchaser is in Default, then, without limiting MVM’s other rights MVM may, at its discretion:
(a) charge the Purchaser interest on amounts owing to MVM at the rate of:
(i) 6% per annum; plus
(ii) the 90-day bill rate (current on the due date for payment), calculated from the due date to the date of actual payment. For the purposes of this provision, the “90-day bill rate” is the 90-day bank bill buy rate published on Reuters Monitor Screen BKBM (or its successor page) at 11am NZDT; and/or
(b) withhold or cancel the relevant Order and/or any subsequent Order with notice to the Purchaser but without prejudice to any other action or remedy which MVM have or might otherwise have had; and/or
(c) retain any deposit the Purchaser may have paid (which shall be forfeited by the Purchaser) and/or draw on any relevant L/C, bank
guarantee or standby L/C; and/or
(d) enter into the business premises of the Purchaser for the purpose of enforcing any security; and/or
(e) require the Purchaser to remedy the default in the manner and within the period that MVM instructs the Purchaser; and/or
(f) enforce security interests created by these Terms; and/or
(g) exercise any rights that MVM has under these Terms or that are available to MVM at law.
9.3 MVM will not be liable to the Purchaser for any losses incurred by the Purchaser as the result of MVM exercising any of its rights under this clause 9.
9.4 This clause 9 does not prejudice any other rights or remedies of MVM under these Terms or at law
9.5 If any Order is cancelled, clauses 4.5, 6.4, 7.5, 9.1-9.4, 11.1-11.7, 15.1 and 20 survive expiration of that Order.
10. TRANSFER OF DOCUMENTS
10.1 If the parties agree to electronically exchange any documents or information relating to these Terms (including invoices) (together “Documents”), the following provisions will apply:
(a) All Documents will be transmitted and received in accordance with standards specified by MVM from time to time.
(b) Each party will maintain a record of data exchanged pursuant to this clause 10.1 for not less than 12 months following the supply of Products to which the data relates and allow the other party reasonable access to that record on request.
10.2 Each party agrees that:
(a) any Document exchanged electronically in accordance with clause 10.1 is deemed to be “signed” by the originating party; and
(b) nothing in this clause 10 precludes MVM from exchanging paper documents, provided that where a document is sent in both paper form and electronic form, the electronic form of the document will prevail.
11. WARRANTIES, INDEMNITY AND LIMITATION OF LIABILITY
11.1 Notwithstanding any provision to the contrary in these Terms, these Terms do not exclude or limit the application of any law in New Zealand or any country where such laws apply to the subject matter of these Terms with respect to any Products where to do so would contravene that law or cause any part of this provision to be void.
11.2 Subject to clause 11.1, MVM:
(a) makes no representations or warranties concerning fitness for purpose or appropriateness for the Purchaser’s needs of any Product, and it is the Purchaser’s sole responsibility to assure itself of these matters prior to entering into any agreement or arrangement with MVM;
(b) excludes all conditions and warranties (statutory, express or implied) from these Terms or any of the Purchaser’s Orders to the fullest extent permissible by law; and
(c) is not and will not be liable for any claim by the Purchaser under these Terms unless notice is given in writing to MVM within the Inspection Period of the relevant Products in accordance with the procedure contained in clause 5. For defects which are not detectable or reasonably ought to have been detectable during the Inspection Period, claims shall be made within fifteen (15) days after detection of the defect but in any case, within fifteen (15) days after expiry of the alleged defective Product’s relevant shelf life as stipulated by MVM.
11.3 Subject to clause 11.1, MVM’s total liability for breach of any express or implied provision of these Terms, any negligence by MVM (or anyone on behalf of MVM) in supplying Products or breach of any law is limited, at MVM’s option, to one of the following, as specified by MVM:
(a) refunding the price of the Products (or offering credit where payment has not then been made); or
(b) replacing the Products.
11.4 MVM will not under any circumstances be liable to the Purchaser in relation to these Terms or in relation to any supply of Products to the Purchaser for any indirect or consequential loss or damage or loss of profits arising out of or in connection with the supply of the Products to the Purchaser.
11.5 To the maximum extent permitted by law, MVM’s liability for all claims arising in relation to any supply of Products (from whatever
source, whether in contract, equity, tort (including negligence), breach of statutory duty or otherwise) is limited to the replacement value of the relevant Products supplied or agreed to be supplied to the Purchaser.
11.6 The Purchaser will not make any representations or warranties in respect of the Products without MVM’s prior approval in writing.
11.7 Without prejudice to any other of MVM’s remedies, the Purchaser indemnifies MVM as a continuing indemnity, against any loss, claim, damage, expense, liability or proceeding suffered or incurred at any time by MVM (including any indirect or consequential loss any loss of revenue, profits or goodwill) or occurring as a result of, or resulting directly or indirectly out of, or in connection with:
(a) the Purchaser’s handling, storage, use or sale of Products;
(b) any other negligent or illegal act or omission by the Purchaser in relation to the handling, storage, use or sale of Products;
(c) any on-sale of Products by the Purchaser or sale of the Products by a third party that has contracted with the Purchaser for the on-supply of Products.
12. TECHNICAL ADVICE
12.1 Where MVM gives any advice of a technical nature to the Purchaser, it does so to provide helpful suggestions only. MVM assumes no obligation or liability for any such advice so given. The Purchaser accepts such advice entirely at its own risk based on its own judgment.
12.2 MVM’s technical documentation is its Intellectual Property and may not be altered by the Purchaser for any purpose whatsoever.
13. EXCLUSION OF FAIR TRADING ACT 1986, CONSUMER GUARANTEES ACT 1993 AND SALE OF GOODS LEGISLATION (CONTRACT AND COMMERCIAL LAW ACT 2017)
13.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon MVM which cannot by law (or which can only to a limited extent by law) be excluded. MVM excludes all such imposed warranties, conditions or obligations to the extent permitted by law and excludes any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
13.2 Where the Purchaser acquires Products from MVM for the purposes of a business:
(a) the parties acknowledge and agree that:
(i) the Purchaser is acquiring the Products covered by these Terms for the purposes of a business in terms of section 43(2) of the Consumer Guarantees Act 1993;
(ii) the Purchaser agrees that all warranties, conditions, and other terms implied by the Consumer Guarantees Act 1993 are excluded
from these Terms to the fullest extent permitted by law and the parties further acknowledge and agree that it is fair and reasonable that the parties are bound by this clause.
13.3 Where the Products are supplied and acquired in trade for the purposes of section 5D of the Fair Trading Act 1986, the parties agree to contract out of and agree that all warranties, conditions, and other terms implied by sections 9 (Misleading and deceptive conduct generally), 12A (Unsubstantiated representations), and 13 (False or misleading representations) are excluded from these Terms to the fullest extent permitted by law and the parties further acknowledge
and agree that it is fair and reasonable that the parties are bound by this clause.
13.4 For the purposes of s 197 Contract and Commercial Law Act 2017 (CCLA), the parties expressly agree that any rights, duties, or liabilities of MVM arising under a contract of sale by implication of law are excluded from any supply of Products.
14. PACKAGING AND LABELLING
14.1 All Products shall be packaged in conformity with MVM’s current standard packaging and labelling protocols. Unless otherwise expressly agreed in writing by MVM, Products shall not be supplied with any special packaging or labelling requirements. The Purchaser shall not alter or remove nor permit the alteration or removal of MVM’s Product labels while in transit for Delivery.
15. INTELLECTUAL PROPERTY
15.1 The Purchaser disclaims and shall not challenge any right, title or interest in any Intellectual Property.
15.2 Subject to clause 11.7(c), MVM grants the Purchaser (and the Purchaser’s customers) a non-exclusive licence to use MVM’s trade name and Product branding for the marketing and sale of the Purchaser’s products, or for the on-sale of the Products but not for any other purpose unless expressly agreed in writing by MVM and subject at all times to any other terms imposed by MVM.
15.3 The Purchaser shall not nor shall permit the Purchaser’s customers to on–sell the Products under any trade name or branding other than denoted on the Product’s original packaging, except to the extent that the Product has been altered or combined with other ingredients or materials so that the Product materially differs from that supplied by MVM.
15.4 Any Intellectual Property that is developed during the course of any supply of Products by MVM to a Purchaser is the sole property of
16. FORCE MAJEURE
16.1 MVM shall not be liable for a breach of these Terms if a breach is caused by any reason beyond the control of MVM (“force majeure”) provided that force majeure does not include any event which that MVM could have prevented or overcome by reasonable care or lack of funds for any reason.
(a) If MVM cannot perform its duties and obligations under these Terms because of a force majeure event:
i. MVM shall provide the Purchaser in writing a description of the force majeure event to the extent that commercial sensitivity permits and the supply of products or performance of these Terms by MVM will be suspended while force majeure event continues;
ii. As soon as the force majeure event ceases, MVM shall give written notice to the Purchaser;
iii. If the force majeure event substantially affects the commercial basis of these Terms and continues for more than 60 days after notification by MVM, MVM and the Purchaser shall, within a further 20 days, agree to consult about what action to take in the circumstances to continue the supply of Products; if appropriate, they must negotiate in good faith to modify these Terms to permit the continuation of the supply of Products ;
iv. If the negotiations are unsuccessful, either MVM or the Purchaser may cancel the unperformed supply of Products and these Terms with 30 days’ written notice to the other party. Upon such cancellation of unperformed supply of Products, MVM shall refund any payments received in advance for the unperformed supply of the Products and neither party shall have any claim against the other for unperformed supply but without prejudice to the rights of either party arising prior to the fore majeure event arising.
17.1 The Purchaser may not assign any of its rights or obligations under these Terms without MVM’s prior written consent.
17.2 The Purchaser must inform MVM with not less than 14 days prior written notice of any proposed change in its name, trading name, contact details or business practice.
18.1 If any part of these Terms is held to be illegal, void or unenforceable, the remaining provisions shall remain in full force and effect
19.1 All of MVM’s rights, powers and remedies remain in force despite any neglect or delay in enforcing them.
19.2 MVM will not be considered to have waived any right, power or remedy unless the waiver is in writing and signed by an authorised signatory of MVM.
20.1 The Purchaser shall at all times treat as confidential all non-public information and material received from MVM and shall not publish, release, or disclose the same without MVM’s prior written consent. For clarity, confidential information includes any new Intellectual Property and prices.
21. GOVERNING LAW
21.1 The construction, validity and performance of these Terms will be governed in all respects by New Zealand law and the parties submit to the non-exclusive jurisdiction of New Zealand courts in respect of any dispute arising between the parties.
22. DISPUTE RESOLUTION
22.1 If a party has any dispute with the other party in connection with these Terms:
(a) That party will promptly give full written particulars of the dispute to the other; and
(b) The parties will promptly meet together and in good faith try to resolve the dispute.
22.2 If the dispute is not resolved within 7 days of written particulars
being given (or any longer period agreed to by the parties) the dispute
will be referred to mediation by either party giving written notice of
such referral to mediation to the other.
22.3 A party must use the mediation procedure to resolve a dispute before commencing arbitration or legal proceedings.
23.1 In these Terms, unless the context otherwise requires:
• ‘CIF Invoice’ means an invoice specifying the price of the Products contained in an Order plus the applicable insurance and freight costs payable by the Purchaser on a CIF (Incoterms) basis.
• ‘Delivery’ has the meaning given in clause 4.8 (and ‘Delivered’ has an equivalent meaning). ‘FAS Invoice’ means an invoice specifying the price of the Products contained in an including the applicable carriage and export clearance costs payable by the Purchaser on a CIF (Incoterms) basis.
• ‘GDT Price Index’ means the price list for dairy products published globally by the Global Dairy Trade.
• ‘Incoterms’ means the 2010 edition of the International Commercial Terms published by the International Chamber of Commerce.
• ‘Insolvency Event’ is where the Purchaser:
o commits an act of bankruptcy or makes an assignment or composition with its creditors;
o becomes liable to be placed in liquidation;
o cannot pay its debts when they fall due, or is deemed not to be able to pay them in accordance with section 287 of the Companies Act 1993; or
o suspends payment to its creditors or ceases or threatens to cease operating or convenes a meeting of its creditors to propose a scheme of arrangement with them;
o has a liquidator appointed or its board or shareholders propose or pass a resolution to appoint a liquidator;
o has a receiver, manager or statutory manager appointed;
o has an application for it to be placed in liquidation presented or advertised;
o passes or purports to pass a resolution for it to be placed in liquidation;
o transfers or disposes of a substantial part of its assets for inadequate consideration, or threatens to do so;
o has an order made against it for more than $50,000 against its property or assets; or
o has a final judgment for more than $50,000 against it which remains unpaid for 14 days.
• ‘Inspection Period’ means a period of 30 days from Delivery of supplied Products to the dispatch shipment address provided to MVM by the Purchaser.
• ‘Intellectual Property’ means all intellectual property rights including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, procedures, calculations, specifications, know-how, confidential information and all other statutory and common law rights and interests arising directly or indirectly in relation to MVM’s Products.
• ‘MVM’ means Mataura Valley Milk Limited (2094638).
• ‘Order’ means the Products MVM agrees to supply to the Purchaser specified in a Sales Order Confirmation.
• ‘PPSA’ means the Personal Properties Securities Act 1999.
• ‘Products’ means any goods or materials produced by MVM offered for sale by MVM to a Purchaser.
• ‘Purchaser’ means any party that contracts to purchase Products from MVM.
• ‘GST’ means any tax payable in accordance with the Goods and Services Tax Act 1985 and any equivalent foreign sales, valued-added or consumption tax.
• ‘Sales Order Confirmation’ means written acceptance of a Purchase Order, subject to any variations or additional conditions MVM states in the Sales Order Confirmation.
• ‘Security’ means all existing and future security held by MVM that secures the Purchaser’s obligations under these Terms.
• ‘Purchase Order’ means a written request to purchase Products from MVM made in accordance with MVM’s ordering Purchase Order procedures.
• ‘Terms’ means these Terms and Conditions subject to clause 1.3.
• ‘Transport Documentation’ means a bill of lading or equivalent transport documentation in respect of an relevant Order, dated within the indicated period for Delivery and which enables the Purchaser to claim the Order from the carrier at the named place of destination of the Order.
23.2 The rule of construction known as the contra proferentem rule does not apply to these Terms.
23.3 Words importing the singular include the plural and vice versa.
23.4 Headings are for convenience only and do not form part of, or affect the interpretation of, these Terms.
23.5 References to a party include that party’s successors, personal representatives, executors, administrators and permitted assigns.
23.6 References to a statute include references to:
(a) regulations, orders, rules or notices made pursuant to that statute;
(b) all amendments to that statute and those regulations, orders, rules or notices, whether by subsequent statute or otherwise; and
(c) any statute passed in substitution of that statute.