1.1 These terms of trade are entered into on behalf of and are intended to bind and be for the benefit of BLM and BLM’s successors and assigns.
1.2 In these terms of trade:
“the contract” means the contract between BLM and the Customer for the purchase of the goods and/or service
“the contract price” means the price of the goods and/or services as agreed between BLM and the Customer
“the Customer” means the person buying the goods and/or services from BLM
“goods” means any goods being purchased by the Customer from BLM which are the subject of the contract
“person” includes a corporation, association, firm, company, trust, partnership or individual
“services” means any services being provided to the Customer by BLM which are the subject of the contract,
either in conjunction with the supply of goods or otherwise
1.3 Headings are used as a matter of convenience only and will not affect the interpretation of these terms of trade.
1.4 BLM will contract with the Customer on these terms of trade and BLM’s confirmation of the Customer’s order only. BLM may change these terms of trade in respect of future purchases of goods and/or services by notice in writing to the Customer.
2.1 The contract price at which the goods and/or services will be sold by BLM to the Customer will be that notified by BLM and agreed to by the Customer.
3. TAXES AND DUTIES
3.1 Unless expressly included in any quotation given by BLM, sales taxes, goods and services and other taxes and any duties assessed or levied in connection with the supply of the goods and/or services to the Customer are not included in the price and are the responsibility of the Customer or, where the payment of such taxes or duties is the responsibility of BLM at law, the price will be increased by the amount of such taxes or duties.
4.1 Payment must be made by the Customer in cleared funds immediately upon the issue of an invoice for the supply of the goods and/or services unless clause 4.2 applies.
4.2 With BLM’s prior written agreement, payment may be made by the Customer by the 20th of the month following the date an invoice has been issued for the supply of the goods and/or services.
4.3 If BLM at any time deems the credit of the Customer to be unsatisfactory, it may require security for payment and may suspend performance of its obligations under the contract until the provision of sufficient security. All costs and expenses of or incurred by BLM as a result of such suspension and any recommencement are payable by the Customer upon demand.
4.4 The Customer is not entitled to withhold payment or to make any deductions from the contract price or claim any set off without the prior written consent of BLM.
5. INTEREST FOR LATE PAYMENT
5.1 Interest at 18% per annum calculated on a daily basis is payable on any moneys outstanding under the contract from the date payment was due until the date payment is received by BLM but without prejudice to BLM’s other rights in respect of non-payment or late payment.
6.1 Delivery is to be made at the place indicated in the contract or, if no place is indicated in the contract delivery is to be made at the Customer’s premises. If the Customer fails or refuses or indicates to BLM that it will fail or refuse to take or accept delivery, then the goods are deemed to have been delivered when BLM was willing to deliver them.
6.2 BLM reserves the right to deliver the goods by instalments and each instalment is deemed to be a separate contract under the same provisions as the main contract. Should BLM fail to deliver or make defective delivery of one or more instalments this will not entitle the Customer to repudiate the main contract.
6.3 BLM may charge storage and transportation expenses if the Customer fails or refuses to take or accept delivery or indicates to BLM that it will fail or refuse to take or accept delivery at the time specified in the contract or at any other times as BLM is able to deliver the goods.
7.1 Risk of any loss, damage or deterioration of or to the goods is to be borne by the Customer from the date of dispatch of the goods from BLM’s premises, notwithstanding that BLM may have arranged or effected delivery of the goods.
7.2 The Customer must make its own arrangements for the insurance of the goods, from the point of time at which the goods are at the customer’s risk.
7.3 The customer will remain liable to BLM for payment of the contract price, notwithstanding the loss of, or damage to the goods following dispatch from BLM’s premises.
8.1 Title to the goods does not pass from BLM to the Customer until the contract price and all other moneys payable by the Customer to BLM have been paid in full.
8.2 The Customer may sell the goods in the ordinary course of its business provided that the proceeds of the sale are at all times the property of BLM and the Customer must lodge the proceeds of sale to a special account to be maintained by the customer for the purpose of dealing with the goods and must pay directly to BLM from such account such monies as may be required by BLM.
8.3 The power to resell the goods will cease immediately if the Customer fails to make payment in full on the due date or if the Customer commits any act of bankruptcy, enters into any composition or arrangement with its creditors or (in the case of a company) does any act which would render it liable to be placed in liquidation or have a receiver, administrator or similar person appointed over its property.
8.4 If any of the events listed in clause 8.3 occur, BLM will be entitled whether or not demand has been made and without the necessity of giving further or other notice, to re-take possession of all goods in respect of which payment in full has not been made.
8.5 The Customer authorises BLM as its agent to enter the premises of the Customer or any other premises where the goods may be kept for the purposes of taking possession of the goods and the Customer agrees to indemnify BLM for all costs and claims incurred or suffered as a consequence of doing so.
8.6 In the case of any goods which have been incorporated into or made part of any other goods or any other articles, BLM may dismantle such goods or articles to recover the goods supplied by it.
8.7 If BLM takes possession of any goods, it may, at its option, elect either to allow a credit for the value of the goods repossessed against the amount owed or to resell the goods. Resale may be affected in such manner as BLM in its sole discretion thinks fit. If on resale there is any shortfall between the amount realised and the amount originally agreed to be paid by the Customer, the Customer will remain liable for the shortfall and will also be liable for the reasonable costs incurred by BLM in retaking possession and completing sale of the goods including, without limitation, storage and transportation costs.
9. PERSONAL PROPERTY SECURITIES ACT 1999
9.1 The Customer acknowledges that clause 8 creates a security interest (“Security Interest”) (as that term is defined in the Personal Property Securities Act 1999 (“PPSA”)) in the goods. The Customer will at BLM’s request promptly execute any documents, provide all necessary information and do anything else required by BLM to ensure that the Security Interest constitutes a Perfected Security Interest (as that term is defined in the PPSA) and which will have priority over all other Security Interests in the goods.
9.2 The Customer agrees, to the extent permitted by law, that the Customer will have no rights under the following provisions of
Part 9 of the PPSA to:
a. receive a notice under section 114(1)(a);
b. receive a statement of account under section 116;
c. surplus distributed under section 117;
d. recover any surplus under section 119;
e. receive notice of any proposal of BLM to retain collateral under section 120(2);
f. object to any proposal of BLM to retain collateral under section 121;
g. not have goods damaged in the event that BLM were to remove an accession under section 125;
h. receive notice of the removal of an accession under section 129;
i. apply to the Court for an order concerning the removal of an accession under section 131; and
j. redeem collateral under section 132.
k. reinstate the contract in respect of the good(s) under section 133.
9.3 The Customer agrees that where BLM has rights in addition to those under Part 9 of the PPSA, those rights will continue to apply.
9.4 The Customer waives its right under the PPSA to receive a copy of any Verification Statement (as that term is defined in the PPSA).
10. DELAY; FORCE MAJEURE
10.1 If any time for delivery of the goods or completion of the contract or any part of it is stated in the contract, such time is approximate only and is not deemed to be of the essence of the contract.
10.2 BLM is not liable for failure to deliver or for any delay in delivery where such failure or delay is caused by strike, combination of workmen, lockout, difficulty in procuring components or materials, shortage of labour, lack of skilled labour, delays in transit, failure or delay by the Customer in performing any of its obligations under the contract, failure or delays by suppliers or subcontractors, failure, delay or inability to obtain any necessary import or export licence, foreign exchange control authorisation or similar authorisation, legislative, governmental or other prohibitions or restrictions, fire, flood, hostilities, commotions or other causes whatsoever (whether similar in nature or not to the foregoing) beyond BLM’s reasonable control.
10.3 If the manufacture, supply or delivery of the goods or provision of the services is delayed by reason of or as a result of any act, omission, default or request by or on behalf of the Customer, BLM may, without prejudice to its other rights and remedies, require payment by the Customer of such portion of the contract price as represents the extent to which BLM has performed the contract or carried out work required by the contract up to the date such payment is required together with any expenses or additional costs incurred by BLM as a result of such delay. In the event of such delay continuing beyond a reasonable time, BLM may, without prejudice to its other remedies, terminate the contract.
11. CLAIMS POLICY
11.1 The Customer is only entitled to return the goods or to receive a credit for goods returned in accordance with the following:
a. Any claims alleging the supply of incorrect or faulty goods either as to quantity or type or damaged or defective goods must be made within 14 days of delivery.
b. The onus of proving that BLM is responsible for the supply of incorrect or defective goods or damaged goods is with the Customer.
c. The Customer must at its own cost in all things return the goods to BLM’s premises, together with such written explanation and other information which BLM may require to consider any such claim.
d. If BLM agrees that faulty, defective or damaged goods have been supplied, BLM’s liability is limited to the value of the goods at the time of supply and BLM accepts no further liability whatsoever.
e. If BLM does not accept a claim for the supply of incorrect, defective or damaged goods, or no claim is made by the Customer but BLM agrees to accept the return of any goods, whether defective or not, BLM is entitled to charge a fee for accepting the return of goods, the fee to be 10% of the contract price for the goods. The amount of any credit given by BLM to the Customer for returned goods may be reduced by the amount of such fee.
12. EXCLUSION OF LIABILITY
12.1 To the maximum extent permitted by law, BLM will not be liable to the Customer for any proceedings, claims, losses or costs suffered or incurred by the Customer whether arising in contract, tort (including negligence) breach of statutory duty, or otherwise, in respect of any goods sold or services supplied to the Customer.
12.2 If, for any reason, BLM is found to be liable to the Customer then that liability will be limited to direct loss or damage suffered or incurred by the Customer to a maximum of the amounts actually paid by the Customer to BLM for the goods and/or services, the subject matter of BLM’s liability to the Customer.
13. DEFAULT AND INDEMNITY
13.1 If the Customer defaults in the payment of any monies payable to BLM under the contract or if the Customer commits any act of bankruptcy, enters into any composition or arrangement with its creditors or (in the case of a company) does any act which would render it liable to be placed in liquidation or have a receiver, administrator or similar person appointed over its property, BLM, without prejudice to any other right it has at law or in equity, may, at its option, suspend or terminate the contract, and payment of all moneys payable hereunder will immediately become due and payable.
13.2 Any suspension of the contract by BLM does not prevent it terminating the contract during the period of suspension.
14. PATENTS AND COPYRIGHT
14.1 Copyright in all drawings, specifications and other technical information provided by BLM in connection with the contract is vested in BLM.
14.2 If any goods are to be supplied to the Customer’s design and/or where services are to be performed by BLM, the Customer warrants that the manufacture and supply of such goods or the performance of such services by BLM will not infringe any patent, copyright or other rights of any other person and the Customer agrees to indemnify BLM against any liability incurred by BLM including any costs and expenses in the event of any claim being made that the manufacture or supply of such goods or the performance of such services by BLM infringes any patent, copyright or other rights of any other person.
15. DIMENSIONS AND SPECIFICATIONS
15.1 Dimensions and specifications contained or referred to in the contract or in any catalogues or other publications maintained or issued by BLM are subject to customary industry tolerances.
16.1 Where these terms of trade form part of a written quotation, the quotation is open for acceptance for a period of 30 days from the date of quotation. The quotation may be withdrawn by BLM at any time before acceptance. Acceptance arises upon receipt by BLM of the Customer’s written acceptance unless BLM agrees otherwise.
17.1 The items mentioned in the quotation (where the contract arises from a quotation by BLM) or the items contained in BLM’s confirmation of order (where the contract arises from an order by the Customer) together with these terms of trade are the conditions of the contract.
17.2 All other conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise are expressly excluded.
17.3 The Customer agrees that it will acquire all of the goods for business purposes and that the guarantees and rights expressed or implied in the Consumer Guarantees Act 1993 in favour of the Customer will not apply to the sale of any goods or the provision of any services by BLM.
17.4 In the case of any conflict between an order submitted by the Customer and BLM’s confirmation of order and these terms of trade, BLM’s confirmation of order and these terms of trade prevail.
17.5 No agent or representative of BLM is authorised to make any representations, warranties, conditions or agreement not expressly confirmed by BLM in writing and BLM is not in any way bound by any such unauthorised statements nor can any such statements be taken to form a contract or part of a contract with BLM collateral to the contract.
18. GENERAL PROVISIONS
18.1 All rights, powers, exemptions and remedies of BLM remain in full force despite any neglect, forbearance or delay in their enforcement.
18.2 BLM is not deemed to have waived any condition unless such waiver is in writing under signature of BLM or its authorised officer(s) and any such waiver, unless the contrary is expressly stated, applies to and operates only in a particular transaction, dealing or matter.
18.3 The Customer may not assign all or any of the Customer’s rights or obligations under the contract without the prior written consent of BLM. A change in the effective control of the Customer by any means is deemed an assignment for the purposes of this clause.
18.4 The contract in all respects is deemed to be a contract made in New Zealand and the construction, validity and performance of the contract is governed by New Zealand law. The exclusive jurisdiction of the New Zealand courts to deal with all claims and actions arising out of the contract is agreed.
18.5 If any provision of these terms of trade is invalid, void or illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
18.6 Time is of the essence in respect of the Customer’s payment obligations under the contract and these terms of trade.