BLACK STEEL TERMS OF TRADE
Black Steel are Auckland-based structural steel fabricators. Our terms of trade are listed below.
1.1 “We”, “us” and “our” shall mean Black Steel Mobile Limited, or any of our agents or employees.
1.2 “You” and “your” shall mean the person or entity acquiring Goods and/or Services from us, including any person acting on your behalf of or with your authority. or entity.
1.3 “Goods” shall mean all goods supplied by us to you, including, but without limitation, structural steel beams and wielded components.
1.4 “Services” shall mean all services provided by us to you and shall include without limitation the provision of all design work (of any kind), steel work (of any kind), installation, creation and/or provision of intellectual property, all charges for labour and work, all related disbursements associated with services provided, and all charges and costs associated with a change to the original order or quote, or any fee or charge whatsoever associated with the supply of services by us to you.
1.5 “Price” shall mean the cost of the Goods and/or Services as agreed between us and you subject to clause 4 of this contract.
1.6 “PPSA” refers to the Personal Property Securities Act 1999.
1.7 “Financing statement”, “financing change statement”, “security interest”, “purchase money security interest”, “attached”, “attachment”, “perfected”, “accession”, “commingled” and all related terms have the meanings given them by the PPSA.
1.8 “Residential construction contract”, “payment claim”, “progress payment” and all related terms have the meanings given them by the Construction Contracts Act 2002.
2. RETENTION OF TITLE
2.1 Ownership of, and/or title in, any Goods shall remain with us until you have paid us the full invoiced amount for such Goods and all of your other outstanding indebtedness to us on any account whatsoever.
2.2 Until you satisfy your obligations under clause 2.1, you shall be bailee of the Goods and nothing shall entitle or confer on you (or any other person) any right, property or interest in or to the Goods whether during the term of this contract or not.
2.3 While we retain legal and/or beneficial ownership in the Goods until clause 2.1 has been satisfied, you shall ensure that:
2.3.1 the Goods are kept separate and clearly identify such Goods as being our property where possible; or
2.3.2 if that is not possible (in our discretion) and the Goods become fixtures that shall not extinguish or diminish your obligation to pay us in accordance with clause 2.1.
2.4 You agree with us to treat the security interest in the Goods as a continuing and subsisting security with priority over a registered general security and any unsecured creditors despite the fact of the Goods having become fixtures at any time before payment has been made for them.
2.5 You agree that we are the owner of all intellectual property associated with any Goods or Services undertaken on your behalf (including but not limited to design and plan modifications) and that ownership in such intellectual property shall not pass to you until clause 2.1 has been satisfied.
3. PERSONAL PROPERTY SECURITIES ACT
3.1 In consideration of us supplying the Goods to you at your request, you, by signing these Terms of Trade:
3.1.1 Grant us a purchase money security interest (“PMSI”) as defined by the PPSA in the Goods; and
3.1.2 Agree that any of the Goods or proceeds of sale of the Goods coming into existence after the date of these Terms of Trade will come into existence subject to the PMSI granted in clause 3.1.1 without the need for any further action or agreement by any party; and
3.1.3 Acknowledge that you have received valuable consideration from us and agree that it is sufficient; and
3.1.4 Agree that the PMSI has attached to all Goods supplied now or in the future to you and that the attachment of the PMSI has in no way been deferred or postponed from the date recorded herein; and
3.1.5 Agree that the terms of the then current Auckland District Law Society Inc (or its successor) form of general security agreement shall apply to such PMSI or security interest.
3.2 We reserve the right to register a financing statement in respect of any Goods or Services supplied by us to you pursuant to these Terms of Trade and in respect of which we have extended credit to you. The costs of registering a financing statement or a financing change statement shall be paid by you and may, where applicable, be debited against your credit account with us. For clarification, this clause permits us to register a security interest in any of your asset(s) which we have undertaken any servicing, repairing or any other Services on such asset(s).
3.3 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 under these Terms of Trade.
3.4 You shall promptly, on our request, execute all documents and do anything else reasonably required by us to ensure that the PMSI and/or other security interest created by these Terms of Trade constitutes a perfected security interest over all Goods and Services supplied.
3.5 You shall not agree to allow any person to register a financing statement over any of the Goods supplied by us without our prior written consent and will immediately notify usif you become aware of any person taking steps to register a financing statement in relation to such Goods.
3.6 You shall not allow the Goods to become accessions or commingled with other goods unless we have first perfected any security interest that we have in relation to the Goods or unless we waive our rights under this clause 3.6.
3.7 If we perfect any security interest that we have in relation to the Goods or Services (see clause 3.2), you shall not do anything that results in us having less than the security or priority granted by the PPSA that we assumed at the time of that perfection, subject only to the rights of a mortgagee pursuant to a registered mortgage under the Land Transfer Act 1952.
3.8 You irrevocably grant us the right to enter upon your property or premises (or any premises which the Goods or any of our other security is kept), without notice, and without being in any way liable to the you or to any third party. If we have cause to exercise any of our rights under section 109 of the PPSA, then you shall indemnify us from any claims made by any third party as a result of such exercise. You acknowledge that the Goods will be ‘at risk’ for the purposes of section 109 of the PPSA where we believe or have reason to believe that the Goods may be comingled with other goods or become an accession to other goods.
3.9 Where we repossess any Goods we may resell those Goods and apply any proceeds (after all costs associated with such a sale are deducted, including but not limited to transportation, storage, legal or debt collection costs) to any debt outstanding us by you or we may retain any repossessed Goods and credit your account less any sums associated with depreciation, wear and tear, obsolescence, loss of profit, costs (including but not limited to transportation, storage, legal or debt collection costs). Such decision shall be in our sole discretion
3.10 You shall not change your name without giving prior written notice to us of the new name. You shall not relocate your principal place of business or move any of the Goods outside New Zealand.
3.11 The parties agree that nothing in sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 133 and 134 of the PPSA will apply to these Terms of Trade, or any the security interest granted under these Terms of Trade.
4.1 Where no price is stated in writing or agreed to orally the Goods and/or Services shall be deemed to be sold at the current price applying at the date on which the invoice for the Goods or Services is issued to you.
4.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the goods or services that is beyond our control between the date of the contract and delivery of the Goods or providing of the Services.
5.1 Payment for goods or services shall be made in full on or before the 20th day of the month following either the month in which the invoice is issued or the month in which the goods are delivered, whichever is the earlier (“the due date”).
5.2 Without limiting the application of clause 5.1, if we decide to issue a payment claim pursuant to the Construction Contracts Act 2002 then the progress payment set out in the payment claim shall become due and payable as set out in the said Act being 20 working days after the payment claim is served on you.
5.3 Interest may be charged on any amount owing after the due date at the rate of 6% per month or part month.
5.4 Any expenses, disbursements and legal costs incurred by us in the enforcement of any rights contained in this contract shall be paid by you, including any reasonable solicitor’s fees or debt collection agency fees.
5.5 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
6. CONSTRUCTION CONTRACTS ACT 2002
6.1 The parties acknowledge that all provisions of the Construction Contracts Act 2002 shall apply to this contract except where inconsistent with this contract.
6.2 The parties further acknowledge that all provisions of the said Act, including those sections listed in section 10 of the said Act, shall apply to this contract even if it is a residential construction contract as that term is defined by the said Act.
7.1 Where a quotation is given by us for Goods and/or Services:
7.1.1 The quotation shall be valid for one month from the date of issue; and
7.1.2 The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.
7.2 Where Goods and/or Services are required in addition to the quotation you agree to pay for the additional cost of such Goods and/or Services at the then current price for such Goods and/or Services.
8.1 The Goods remain at our risk until delivery to you, but thereafter shall pass to you.
8.2 Notwithstanding clause 8.1, where title passes to you pursuant to clause 2, Goods are at your risk whether delivery has been made or not.
8.3 Risk of any damage to the Goods arising out of any Services carried out by us, at your request, shall be borne by you except damage caused by our negligence, or of our servants, agents or contractors, which damage shall be our responsibility.
8.4 Delivery of Goods shall be deemed complete when we give possession of the Goods for delivery to you, or possession of the Goods is given to a common carrier, or other bailee for the purposes of transmission to you.
8.5 The time agreed for delivery shall not be an essential term of this contract unless we agree otherwise in writing.
8.6 Where we deliver Goods or provide Services to you by installments and we fail to deliver or supply one or more instalments, you shall not have the right to repudiate the contract but you shall have the right to claim compensation as a severable breach.
8.7 Notwithstanding clause 8.6, you shall not be entitled to claim compensation, or take any legal action in regard to a failure to supply, unless and until we have received written notice of such a failure and have been given 10 working days to remedy that failure.
9.1 You authorise us to contract either as principal or agent for the provision of Goods and/or Services that are the subject-matter of these Terms of Trade.
9.2 Where we enter into a contract of the type referred to in clause 9.1, it shall be read with and form part of this agreement and you agree to pay any amounts due under that contract.
10. RETURN OF GOODS
10.1 You shall be deemed to have accepted the Goods unless you notify us otherwise within 10 working days of delivery of the Goods to you.
10.2 No Goods will be accepted for return by us without prior written approval.
11. LIMITATION OF LIABILITY
11.1 Other than as provided by statute, we shall not be liable for any damage or loss of any kind whatsoever arising directly or indirectly from Goods and/or Services supplied by us to you, including without limitation any financial loss, whether suffered by you or any other person.
11.2 In the event that we are found liable, whether in contract or tort or otherwise, for any loss, damage or injury, our liability (wherever permitted by law) shall be limited to damages not exceeding the invoice value of the Goods and/or Services supplied by us to you.
11.3 You indemnify us against any claims, losses or damages of any kind that we may incur as a direct or indirect result of any Goods and/or Services supplied by us to you.
12. CONSUMER GUARANTEE ACT
12.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where you acquire Goods and/or Services from us for the purposes of a business in terms of section 2 and 43 of that Act.
13.1 No representation, condition, warranty or premise expressed or implied by law or otherwise applies to Goods or Services except where Goods are supplied or Services provided pursuant to the Consumer Guarantees Act 1993 or except where expressly stated in these Terms of Trade.
13.2 We do not provide any warranty that the Goods are fit and suitable for the purpose for which they are required by you and shall not be liable if they are not.
13.3 Without limiting the generality of clause 13.1, new parts are warranted free from defective workmanship and material for a period of one year from delivery provided that such parts are correctly installed by a qualified person and subject to normal use and service however no warranty shall exceed that given by the manufacturer to the customer at the time of purchase.
14.1 We shall, without any liability, and without any prejudice to any other right we have in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of Goods or Services to you if:
14.1.1 you fail to pay any money owing after the due date;
14.1.2 liquidation proceedings are commenced in relation to you; or
14.1.3 you shall otherwise become bankrupt or insolvent or you are placed into liquidation, voluntary administration or receivership;
14.1.4 any other event occurs which evidences a lack of credit worthiness or solvency on your part.
14.2 Any cancellation or suspension under clause 14.1 of these Terms of Trade shall not affect our claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or your obligations to us under this contract.
15. COLLECTION AND USE OF INFORMATION
15.1 You authorise us to collect, retain and use any information about you for the purpose of assessing your credit worthiness, enforcing any rights under this contract, or marketing any goods and services provided by us to any other party.15.2 You authorise us to disclose any information obtained to any person for the purpose set out in clause 15.1.
15.3 Where you are a natural person the authorities under clauses 15.1 and 15.2 are authorities or consents for the purposes of the Privacy Act 1993.
16.1 You shall not assign all or any of your rights or obligations under this contract without our written consent.16.2 We shall not be liable for delay or failure to perform our obligations if the cause of the delay or failure is beyond our control.
16.3 Failure by us to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of our rights or obligations under this contract.
16.4 Where the terms of this contract are at variance with the order or instruction from you, this contract shall prevail.
16.5 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.6 Failure to meet credit worthiness will constitute reason for cancellation of contract by uswithout incurring any costs.