General Terms and Conditions
1. These General Terms and Conditions and the Services laid out in official Mil-tek Product literature and Equipment Service Agreements together, are Our Agreement with You.
2. Mil-tek may use subcontractors to perform some or all Services for You, but We will always remain liable to You for complying with these General Terms and Conditions.
Credit & Payment
3. Once Mil-tek has given Your company an account number (You must complete a Credit Application Form), You can start using Our Services.
4. We will usually invoice You for Products and Services once they are ordered. You must pay on receipt of invoice by the 20th day of the month following the date of the invoice. If You stop using Our Services, We will invoice You for any Services provided and not previously invoiced. You must pay immediately that invoice and any other outstanding invoices.
5. If You think there’s a mistake in Your invoice, please let Us know within 7days of receiving the invoice. You must still pay undisputed amounts when due. We will consider the query, and when We have corrected or confirmed the amount due, You must pay any total amount owing within 14 days. We will pay or credit any amount We owe you within 1 month or take the option of raising a credit against Your next invoice.
6. If You don’t pay an undisputed amount when due, We may charge interest on that amount at the overnight overdraft daily interest rate charged by Our principal bankers, calculated daily and compounding monthly, from the due date until receipt of payment, as well as before, any judgement and may stop providing any Services to You until We agree alternative payment arrangements with You.
7. If We have any concerns about Your credit rating at any time, We may contact You for more information or may stop providing Services to You until We agree alternative payment arrangements.
8. Notwithstanding clause 24 it is further agreed that if You owe Us any money, You shall indemnify Us from and against all costs and disbursements incurred by Us in recovering the debt, such as, any legal costs on a solicitor and own client basis or internal administration fee (which may include bank dishonour charges that We have incurred from their banking institute for dishonours or chargebacks) or any collection fees if a debt is passed to a recognised Debt Collection Recovery Agency.
9. The Prices stated in any proposal provided to You are based on the information You have provided to Us or We have agreed with You in discussion. We may need to change a proposed solution and/or the Services We intend to offer You and the Prices charged. If the information You provide is incorrect, or if it changes later, or, if You don’t want to pay the new Prices (including for Services), You can give Us notice in line with any current agreement in place between Us.
10. All Prices are in New Zealand dollars (unless the invoice states otherwise), and exclude GST, which must be paid as well if GST applies.
11. Our Prices are subject to an annual review, as Prices may increase with materials (including parts, components, or materials availability) or labour beyond Our reasonable control (such as; third-party suppliers’ costs, fluctuations with the currency exchange rate or government/industry salary award rates etc.). We reserve the right to pass on such increased costs (including but not limited to, if these increased costs occur outside of the annual review) upon giving at least 30 (thirty) days written notice of any pending Price change. If You do not wish to pay the adjusted new Price, You have the right to terminate Our Services upon written notice in accordance with clause 37.
12. Other pricing or review terms apply for some Services. See Equipment Service Agreement for details.
Delivery and Performance of the Services
13. Product orders will be delivered to the address You provide when You placed an order. PO Box addresses are not accepted.
14. We will endeavour to meet the delivery times displayed on Our Website or advised at the time of placing an order. We cannot, however, be held responsible for the consequences of a late delivery or the loss of Products caused by a third-party contracted to make delivery, or by You, or because of a force majeure event.
15. If You do not receive Your Products, We will investigate with the carrier contracted for the delivery upon receipt of Your claim due to non-delivery, responding to You within 7 days. Until the investigation is completed, there will be no reimbursement or re-delivery to take place.
16. Commencement date for the Services outlined in any Equipment Service Agreement are subject to written notice if the date is to change, delays may occur beyond Our control i.e., Third Party Sellers, Force Majeure, etc (including Government imposed lockdowns effecting Our suppliers and staff, if a business is closed and all personnel are required to, self-isolate). We will not be liable for any loss or damage incurred by You because of the Equipment Service Agreement’s commencement date being late, however, We will at every opportunity liaise with You to ensure the Services do take place, as soon as reasonably possible.
Our liability to You
17. We will:
(a) use reasonable skill and care to provide Our Services,
(b) comply with the specifications for the relevant Service, and
(c) promptly respond to any reasonable questions You may have about Our Products and Services.
18. We give no other guarantees, representations, or warranties unless they are set out in official Mil-tek Product literature or Equipment Service Agreements, or We are required to by law.
19. If We don’t comply with Our Agreement with You, We will be liable for the actions open to You as laid out in the Product literature or Equipment Service Agreement, provided that Your actions are effective within the time limit set out in in those documents. We won’t be liable to pay You for losses, to the extent that Our failure to comply with the Agreement is a result of Your own failure to comply with the Agreement.
20. At the most, We will only be liable to You under or in relation to Our Agreement with You (including any Equipment Service Agreement Terms). We will not pay any loss of income, profits, or savings nor consequential or other indirect losses, unless We are required to by law. Some Services have additional exclusions of liability which are set out in the respective clauses (alternatively Our liability shall be limited to damages which under no circumstances shall exceed the Price of the Products and/or Services supplied under this Agreement and/or Equipment Service Agreement with You respectively).
21. If You are in trade, You agree that the Services provided under this Agreement are supplied and acquired in trade and that the Consumer Guarantees Act 1993 does not apply.
22. We are not required to comply with Our Agreement with You to the extent it is not reasonably practical for Us to do so because of an event outside Our control.
Your liability to Us
23. You agree to:
(a) pay Us the full agreed Price for all Products and Services provided to You,
(b) only use Our Services for lawful purposes,
(c) not interfere in the use of Our Services by other customers,
(d) give Us accurate and complete information in order that We may carry out the Services, and
(e) comply with the specifications for the relevant Service.
24. If You don’t comply with Our Agreement with You, You must reimburse Us for any losses We suffer, or any damage You cause to anyone else’s property as a result of Your failure to comply. If Your breach is material, We may give You 10 days’ notice and then, if You haven’t remedied the breach to Our reasonable satisfaction, stop providing those Services to You.
25. Your liability to Us will be as laid down in official Mil-tek Product literature and/or Equipment Service Agreements.
26. You must insure, the Products on or before delivery, as risk of damage to, or loss, of the Products shall pass to You on delivery.
27. Ownership in the Products and/or obligations (including payment) for Services does not pass to You until payment for those Products and/or Services (together with any additional interest or charges as set out in these Terms and Conditions) have been made in full by way of cleared funds and Your obligations have been fulfilled.
28. Until such time as ownership passes to You:
(a) You hold the Products on trust for Us as bailee and must return any Products to Us on request and irrevocably authorises that We may enter any property where We believe the Products are kept and recover possession of them, without Us being liable for any loss or damage caused to You;
(b) You hold the benefit of Your insurance of the Products on trust for Us, and must pay to Us the proceeds of any insurance in the event of the Products being lost, damaged, or destroyed;
(c) If You sells, disposes, parts with possession of the Products or does anything to the Products which changes its form, then You must hold the proceeds of any such act on trust for Us, and if the Products are sold, must pay, or deliver the proceeds to Us on demand; and
(d) You shall not charge or grant an encumbrance over the Products, nor grant nor otherwise give away any interest in the Products, while they remain Our property.
Personal Property Securities Act 1999 (“PPSA”)
29. You agree to provide such information and do such acts and execute such further documents as in Our opinion may be necessary or desirable to enable Us to perfect under the PPSA the security interest created by these terms and conditions.
30. We may do all things which it thinks desirable to remedy any default by You or otherwise protect all Products or the security interest created by these terms and conditions.
31. You irrevocably appoint Us to be Your attorney to do anything which We agree to do under these terms and conditions and anything which the attorney thinks desirable to protect Our interests under these terms and conditions and the Client ratifies anything done by an attorney under this clause. You agree sections 114(1)(a), 133 and 134 of the PPSA shall not apply to these terms or the security under these terms and conditions.
32. You waive Your right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these terms and conditions.
33. You agree that none of Your rights as debtor under sections 116, 119, 120(2), 121, 125, 126, 127, 129,131 and 132 of the PPSA shall apply to these terms and conditions.
34. You also agree, where You have rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
35. You must not change Your name without first notifying Us of the new name not less than 7 Business Days before the change takes effect.
36. You must not allow or permit the creation of a lien over any of the Products.
To change or cancel Services
37. By You:
(a) Prior to Delivery of the Products and/or Services, by giving no less than 7 Business Days written notice, You remain liable for any costs incurred by Us (including, but not limited to, loss of profit) up to the time of change and/or cancellation; or
(b) Where You cancel the supply of Products and/or Services that have been dispatched or commenced:
(i) The initial notification may be by telephone but must be confirmed in writing or email within 7 Business Days; and
(ii) You shall be invoiced for all work completed up until the date of change or cancellation. Any deposit paid prior to the commencement of the Services will be forfeited in lieu of monies due, however, You remain liable for any monies due over and above any deposit paid; or
(iii) At Our discretion, where failure of clause 37(b)(i) occurs, You may be required to pay the full quoted Price.
(c) Cancellation is not accepted by Us if the Products have been used, if You later change Your mind, unless the cancellation is subject to the Consumer Guarantees Act 1993; and
(d) If You sell or transfer Your Mil-tek Product, it is expected that a new Services Agreement (where there is a current Equipment Service Agreement in operation) needs to be completed with the new owner. Please contact Us by giving written notice addressed to Mil-tek NZ Limited, PO Box 32149, Devonport, Auckland 0624.
38. By Us:
(a) May occur at any time before the Services are carried out by giving 7 Business Days written notice, unless subject to clause 59 (Force Majeure), earlier notice must be given which may be done by either text message and/or email; and
(b) We will repay to You any money paid by You for the Products or Services, less any amounts owing to Us for any Products purchased on Your behalf where credits or refunds cannot be obtained from Our third- party suppliers; and
(c) We shall not be liable for any loss or damage whatsoever arising from such cancellation. Amendments to Our Terms and Conditions
39. We (at Our discretion) may from time to time amend their general terms and conditions and for disclosure purposes shall do so by, notifying You in writing giving at least 30 days’ notice and/or by posting the updated terms and conditions on Our website. The amended terms and conditions will take effect for all future Agreements from the date on which You accept such changes, or otherwise at such time as You make a further request for Us to provide Products and/or Services to You.
40. Notwithstanding clause 39, any changes to the terms and conditions and/or terms of cancellation contained therein of a Fixed Term Equipment Service Agreement must be agreed upon in writing by both parties before such changes will take effect.
Privacy & Confidentiality
41. By providing Us Your Personal Information You are consenting to Our use of this Personal Information, it will only be used by Our employees (We may also share this Personal Information with third parties who enable Us to provide You with Our Services) who need to know such information to process Your order, it is always treated as confidential.
42. We require any third parties used by Us for the provision of the Services to adhere to Our strict confidentiality requirements for handling Personal Information and We seek to ensure that they comply with the Privacy Act 2020, where applicable.
44. We use a secure server using SSL (secure sockets layer) encryption technology that Your Personal Information passes through when You make a transaction through this Website. This encryption process ensures that Your Personal Information cannot be read by or modified by any other third party.
45. You have the right to access, correct, update, or require deletion of Personal Information at any time. Any personal data We collect will be checked by way of a credit check with a credit reporting agency (if applicable) to identify that it is reliable for its intended use, accurate, complete, and up to date.
46. Each party agrees to treat all information and ideas communicated by the other party confidential and both parties agree not to divulge any such information to any third-party, without the other party’s written consent. The obligations of confidentiality shall survive the finalisation or discontinuance of any Agreement between You and Us.
Service terms & specifications
47. Each individual Service may also have specifications and limitations that apply to that particular Service and those specifications and limitations will be set out in the relevant Service terms or Equipment Service Agreement. Those Service terms may add to or vary these General Terms –if they are not consistent with the General Terms, the Service terms have precedence for the Services they relate to.
48. We can provide You with a copy of the current Equipment Service Agreement, and Your use of those Services means that You agree to those Service terms. Each individual Service may also have specifications and limitations that apply to the particular Service. See Equipment Service Agreement for details.
How You can contact Us
49. For further information at any time, or if You think We have not complied with Our terms for Services, please contact Your Mil-tek NZ Ltd contact on 09 446 0709 or visit Our website at http://www.miltek.co.nz.
50. Any notice from You to Us must be in writing (which can be by email), sent by You or Your authorised representative, to: Mil-tek NZ Limited, PO Box 32149, Devonport, Auckland 0624 – Attention: GM Sales & Service.
How We will contact You
51. You agree that all notices about the services and Our terms, and all other correspondence, may be sent either in Your monthly invoice to the address You have given Us (see Customer Information Form), or by separate notice to the contact email address You have provided to Us.
52. If You want to change Your contact address, please sent Us a notice giving the new address or asking Us to use a different contact method.
Other things You need to know
53. Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Contract and Commercial Law Act 2017, Consumer Guarantees Act 1993 or the Fair Trading Act 1986 except to the extent permitted by those Acts where applicable.
54. The legality, construction and performance of this Agreement shall be governed by the laws of New Zealand. You agree that any dispute arising from the Agreement between the two parties that cannot reasonably be resolved by mediation shall then be litigated only, by the jurisdiction of the Courts of New Zealand.
55. If any term or provision of this Agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms and conditions.
56. If any day on or by which anything is due to be done is not a business day, that thing will be deemed to be due on the next business day.
57. If We have a right under this Agreement and don’t exercise it, that does not imply We won’t exercise it in future.
58. Without limiting the effect of clause 4 (Payment), 6 & 8 (Default & Collection Costs), 29-36 (PPSA), 37 (Cancellation), 41-45 (Privacy & Confidentiality), survive the end of this Agreement, and any other terms and conditions which by their nature are intended to survive.
59. Neither party shall be liable if a Force Majeure event occurs:
(a) The obligations of a party under this Agreement and/or Equipment Service Agreement will be suspended to the extent that it is wholly or partially precluded from complying with its obligations under this Agreement and/or Equipment Service Agreement by Force Majeure; and
(b) A party affected by Force Majeure must notify the other party as soon as practicable of the Force Majeure and the extent to which that party is unable to comply with its obligations; and
(c) If a failure or delay in performance exceeds 60 Business Days, either party may immediately terminate this Agreement and/or Equipment Service Agreement by written notice to the other party.
60. Nothing in clause 59 shall excuse payment of any amount owing due or which becomes due under the terms of this Agreement and/or Equipment Service Agreement.
Definitions and Interpretation
61. “Agreement” means the terms and conditions contained herein, together with any quotation, order, invoice, or any additional schedules (including any authority to lease equipment, if applicable), annexures, or any other document or amendment expressed to be supplemental to this Agreement.
62. “Confidential Information” means any information of a confidential nature whether provided verbally, written hardcopy or in electronic form including, but not limited to, this Agreement, intellectual property, promotional information, knowhow, trade secrets, Our information with brochure content and product pricing.
63. “Force Majeure” means an event outside the reasonable control of either party, including an act of God, earthquake, adverse weather conditions, flood, storm, fire, explosion, war, rebellion, terrorism, strike, lock-out, industrial action national or global epidemics or pandemic and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government quarantine restrictions for Goods or individuals.
64. “GST” means Goods and Services Tax, as defined within the Goods and Services Tax Act 1985.
65. “Personal Information” means information about an identifiable individual by ways of their name, address, D.O.B., occupation, driver’s license details, electronic contact type details, such as, email, IP Address, Facebook, or Twitter, or next of kin and any other contact information (if applicable) and were deemed relevant shall include any previous credit applications or credit history details. By the nature of such information, it shall always be considered, Confidential Information.
66. “Price” means the Price payable (excluding any Goods and Services Tax (GST) where applicable) for the Services, as agreed between Us and You and shall be in New Zealand Dollars ($NZ), unless otherwise specified.
67. “Products” means Products, equipment, parts, of any kind that We provide to You as specified in any Agreement quotation, proposal, order, or any other documentation.
68. “Services” shall mean all Services supplied by Us to You (including, advice and recommendations and where the context so permits shall include any incidental supply of Products). Details of all Services and/or Products to be provided by Us to You will be expressed, accordingly on the invoices, quotations, or any other documentation relevant to the Services.
69. “You”, “Your” or “Yourself” means any person/s (end user) being of the legal age of eighteen (18).
70. “We, “Us”, “Our” or “Ourselves” means Mil-tek NZ Ltd, its successors and assigns.
71. In this Agreement, unless the context requires otherwise:
(a) Headings: Headings shall be ignored in construing this document;
(b) Joint obligations: An obligation incurred in favours of two or more parties shall be enforceable by them jointly or severally;
(c) Parts of Contract: References to this Contract including its clauses, schedules, annexures;
(d) Plurals: This singular shall include the plural and vice versa and word importing one gender shall include every gender and a reference to a person shall include any other legal entity of whatsoever kind and vice versa;
(e) Price: A reference to dollars or $ is to an amount in New Zealand currency;
(f) Statutory Requirements: A reference to a statute, ordinance code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments, or replacements of any of them (whether of the same or any other legislative authority having jurisdiction.
72. Neutral Interpretation – nothing in this Contract is to be interpreted against a party solely on the ground that that party put forward this Contract or a relevant part of it.