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Terms of Sale


INTRODUCTION


The Terms of Sale ("Terms") set out below are the terms applying to all sales of New Zealand Steel ("NZ Steel") products in New Zealand.

As the site does not currently provide for on-line sales of NZ Steel products these Terms are provided for information purposes only.

1 APPLICATION

These Terms shall apply to all sales of Goods in New Zealand despite any verbal indication to the contrary by any person acting or purporting to act on behalf of NZ Steel. Accordingly, the Customer must obtain NZ Steel's written confirmation of all variations to these Terms (including all representations or understandings) which may conflict with one of more of these Terms.

2 ACCEPTANCE OF CUSTOMER ORDERS

2.1 NZ Steel will issue an order confirmation ("Order Confirmation") to the Customer which will confirm acceptance by NZ Steel of the Customer's order. In the event that the Customer disagrees with any of the information contained in the Order Confirmation, the Customer should notify NZ Steel accordingly within 10 (ten) days of the date of the Order Confirmation or before despatch of the order from NZ Steel, whichever is earlier.

2.2 Unless the Customer notifies NZ Steel of any disagreement with the Order Confirmation in accordance with clause 2.1, the Order Confirmation shall be deemed to be correct. Each Order Confirmation which is deemed to be correct shall constitute a separate contract for the supply of the particular Goods on these Terms.

3 PRICE AND INDEMNITIES

3.1 Goods and Services Tax is additional to prices contained in NZ Steel's Price Lists and shall be added to all invoices.

3.2 Should NZ Steel's current prices increase or decrease before despatch by NZ Steel, such variation will be to the Customer's account

3.3 The Customer agrees to indemnify NZ Steel, upon demand, for all costs and expenses (including legal fees) incurred by NZ Steel as a result (whether directly or indirectly) of the occurrence of an Event of Default (including upon actual or attempted enforcement of the Security Interest and appointment of a receiver.

4 DELIVERY

4.1 Goods will be delivered by NZ Steel or its agent to the destination stipulated in the Order Confirmation.

4.2 The Expected Date is quoted in good faith but NZ Steel reserves the right to despatch orders in whole or by instalments prior to that Expected Date or within a reasonable time thereafter.

4.3 NZ Steel also reserves the right to cancel, suspend, or delay despatch in the event of and during acts of God, wars, strikes, floods, fires, shortages of fuel, electricity, raw materials, transportation or labour, governmental controls or requirements, accidents or breakdowns in or to NZ Steel's plant or machinery, or any other circumstances of any kind whatsoever beyond NZ Steel's control affecting or interfering with production or delivery of Goods.

4.4 Freight will be charged at the rates contained in NZ Steel's current price list as at the date of delivery.

4.5 Product prices set out in the price list include provision for insurance.

4.6 Delivery will be subject to NZ Steel's minimum quantity practice prevailing at the time.

4.7 The Customer is obliged to take delivery of the Goods and to accept responsibility for unloading at the destination stipulated in the Order Confirmation.

5 PAYMENT

Payment is due 30 (thirty) days from the date of invoice. Any payment or balance of any payment which is unpaid by the due date shall accrue interest at NZ Steel's current overdraft interest rate. Interest will be calculated with daily rests until payment in full is received. Further supply may be restricted until payment is made.

6 CLAIMS

6.1 Claims in respect of defective or damaged Goods (whether as a result of damage during transit or otherwise) are to be lodged at NZ Steel's nearest office or representative within 10 (ten) days of receipt of the goods affected. No claim will be recognised unless lodged within the period prescribed, with a "Claused" carriers receipt for damage during transit. In determining the date of delivery, the date of the carrier's receipt will be final and binding.

6.2 Notwithstanding the above, where Product is delivered in fully enclosed wrapping, the date of receipt will (for the purpose of this clause only) be regarded as the date on which the wrapping might reasonably be expected to be removed.

7 ORDER VARIATION

The Order Confirmation will confirm acceptance by NZ Steel of the Customer's order. However, reasonable changes in Goods ordered (but not a cancellation) may be requested and, if practicable, accommodated by NZ Steel. NZ Steel accepts no obligation to agree to such changes as its position must at all times be governed by programmed production. No order variation shall be binding on NZ Steel until receipt by the Customer of NZ Steel's written confirmation of the change (which will be deemed to accurately record the variation) unless the Customer notifies NZ Steel to the contrary within 10 (ten) days of the date of the confirmation or before despatch of the order from NZ Steel, whichever is earlier.

8 TOLERANCES

Unless otherwise agreed in writing or specifically prescribed by an applicable specification or standard, all Goods are sold subject to:

(i) manufacturer's normal tolerances, variations and limitations in respect of dimensions, mass, straightness, composition, mechanical properties, surface and internal conditions, chemical composition and quality; and

(ii) deviations from such tolerances, variations and limitations consistent with practical testing and inspection methods; and

(iii) normal mill practice of up to 10 (ten) per cent over and under consignment weight; and

(iv) NZ Steel's normal packaging practice and reasonable quality deviations arising from damage during transit.

9 RISK AND OWNERSHIP

9.1 Risk of any loss, damage or deterioration of or to the Goods passes to the Customer on delivery.

9.2 Ownership of the Goods remains with NZ Steel and does not pass to the Customer until the Customer:

(a) pays the Amount Owing in full and NZ Steel has released the Security Interest; or
(b) resells the Goods pursuant to the authority granted by these Terms.

9.3 While ownership of the Goods remains with NZ Steel:

(a) the Customer must store them separately and clearly identify them as belonging to NZ Steel;
(b) NZ Steel authorises the Customer, in the ordinary course of the Customer's business, to use the Goods or sell them for full consideration. This authority is revoked immediately if:

(i) an Event of Default occurs; or
(ii) NZ Steel notifies the Customer in writing that this authority is revoked;

(c) the Customer must advise NZ Steel immediately of any Event of Default or any action by third parties (including any of its creditors) affecting NZ Steel's interest in the Goods.

9.4 NZ Steel may apply any payments received from or on behalf of the Customer in reduction of the Amount Owing in such order and manner as NZ Steel thinks fit (despite any direction to the contrary and whether before or after the occurrence of an Event of Default).

9.5 If the Customer resells or uses any Goods before ownership of the Goods has passed to the Customer, the proceeds of such sale or use shall be received and held by the Customer (in whatever form) in trust for both the Customer and NZ Steel. NZ Steel's interest as beneficiary under that trust shall be that portion of the proceeds which does not exceed the Amount Owing. The balance of the proceeds (if any) shall be the Customer's beneficial interest under that trust.

9.6 NZ Steel may bring an action for the price of the Goods sold even where ownership of the Goods may not have passed to the Customer.

10 PERSONAL PROPERTY SECURITIES ACT 1999

10.1 Without limiting anything else in these Terms, the Customer acknowledges that:

(a) these Terms create, in favour of NZ Steel, a Security Interest in all present and after acquired Goods (being, for the avoidance of doubt, all the Customer's present personal and after-acquired property except for any item of personal property which has not (or which is exclusively the proceeds of any item of personal property which has not) been supplied by NZ Steel to (or for the account of) the Customer) to secure the payment by the Customer to NZ Steel of the Amount Owing; and

(b) these Terms will apply notwithstanding anything, express or implied, to the contrary contained in any purchase order (or its equivalent, whatever called) of the Customer; and

(c) the Security Interest shall continue until NZ Steel gives the Customer a final release.

10.2 The Customer undertakes to:

(a) promptly do all things, sign any further documents and/or provide any information which NZ Steel may reasonably require to enable NZ Steel to perfect and maintain the perfection of its Security Interest (including by registration of a financing statement);

(b) give NZ Steel not less than 14 days' prior written notice of any proposed change in the Customer's name and/or any other change in the Customer's details (including, but not limited to, changes in the Customer's address, facsimile number, trading name or business practice).

10.3 The Customer waives its right to receive a verification statement in respect of any financing statement relating to the Security Interest.

10.4 To the extent permitted by law, the Customer and NZ Steel contract out of:

(a) section 114(1)(a) of the PPSA; and

(b) the Customer's rights referred to in sections 107(2)(c), (d), (h) and (i) of the PPSA.

10.5 The Customer agrees that the Security Interest has the same priority in relation to all amounts forming part of the Amount Owing, including future advances.

11 LIMITATION OF LIABILITY

11.1 NZ Steel's liability in respect of any Goods which are proved to be damaged during delivery or defective due to faulty workmanship or materials or otherwise are proved not to conform with the terms of the order, is limited to whichever is the greater amount of, either:

(a) the replacement of any such Goods at the original destination as set out in the Order Confirmation free of charge; or

(b) a refund of the sale price.

11.2 NZ Steel accepts no responsibility for labour, material and other costs incurred in removing defective Goods and refitting their replacement or for any loss or damage, however arising from and whether directly or indirectly attributable to, any defect in any Goods supplied or any failure to deliver within a stipulated period.


11.3 As NZ Steel has no control over toll processing methods which may affect mechanical and other properties of NZ Steel Goods, NZ Steel accepts no liability for toll processed material.

11.4 "Downgrade" material is sold without warranty as to quality or compliance with specification.

11.5 Save as herein provided, all implied conditions, statements or warranties, whether statutory or otherwise, are expressly excluded.

12 USE OF INFORMATION

12.1 The Customer agrees that NZ Steel may obtain information about the Customer from the Customer or any other person (including any credit or debt collection agencies) in the course of NZ Steel's business, including credit assessment, debt collecting and direct marketing activities, and the Customer consents to any person providing NZ Steel with such information.

12.2 The Customer agrees that NZ Steel may use any information it has about the Customer relating to the Customer's credit worthiness and give that information to any other person, (including any credit or debt collection agency) for credit assessment and debt collection purposes. The Customer agrees that any other information collected by NZ Steel about the Customer is accessed or collected for use in the course of its business, including direct marketing activities.

12.3 The Customer must notify NZ Steel of any change in circumstances that may affect the accuracy of the information provided by the Customer to NZ Steel or any company related to NZ Steel. If the Customer is an individual (i.e. a natural person) the Customer has rights under the Privacy Act 1993 to access and request the correction of any personal information which NZ Steel holds about the Customer.

13 WAIVER
If NZ Steel exercises or fails to exercise any right or remedy available to it, this shall not prejudice NZ Steel's rights in exercising that or any other right or remedy. Waiver of any of these Terms must be specified in writing and signed by an authorised officer of NZ Steel.

14 ASSIGNMENT
NZ Steel is entitled at any time to assign to any other person all or part of any debt owing by the Customer to NZ Steel.

15 REVIEW OF TERMS
NZ Steel reserves the right to review any of these Terms at any time and from time to time. If, following any such review, there is any change to these Terms that change will take effect from the date on which NZ Steel gives notice to the Customer of such change.

16 SEVERABILITY
If any part of these Terms is held by any Court to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of these Terms.

17 RIGHTS, POWERS AND REMEDIES
The rights, powers and remedies provided for in these Terms are in addition to, and do not limit or exclude (or otherwise adversely affect), any right, power or remedy provided to NZ Steel by law.

18 LAW APPLICABLE
These Terms shall be construed and governed by the laws of New Zealand, and the parties hereby submit to the non-exclusive jurisdiction of the courts of New Zealand.

19 DEFINITIONS

19.1 In these Terms:
Amount Owing means, at any time, the unpaid price charged by NZ Steel for the Goods, and any other sums which NZ Steel is entitled to charge under these Terms or which are otherwise owing by the Customer to NZ Steel (in whatever capacity).
An Event of Default means an event where:

(a) the Customer fails to comply with these Terms or any other agreement with NZ Steel; or

(b) the Customer is subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, insolvency or receivership, or which generally precedes such an event; or

(c) an event occurs or information becomes known to NZ Steel, which in NZ Steel's opinion, might materially affect the Customer's creditworthiness, the value of the Goods the subject of the Security Interest, or the Customer's ability or willingness to comply with its obligations under these Terms or any other agreement with NZ Steel; or

(d) any guarantor of the Customer's obligations under these Terms is in default under any agreement with NZ Steel (in any capacity).

Expected Date means the date on which NZ Steel reasonably expects the Goods to be delivered to the Customer.

person includes a corporation, association, firm, company, partnership or individual.

PPSA means the Personal Property Securities Act 1999.

Goods means all goods supplied from time to time by NZ Steel to the Customer, provided that:

(a) where the goods supplied are inventory of the Customer, then all references to Goods in these Terms shall, for the purposes of the PPSA, in respect of those goods, be read as references to inventory for so long as they are held as inventory; and

(b) where the goods supplied are not inventory of the Customer, then all references to Goods in these Terms shall, in respect of those goods, mean the goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) prepared by NZ Steel and relating to those goods, on the basis that each such order form, packing slip or invoice (or its equivalent) is deemed to be assented to by the Customer, incorporated in, and form part of, these Terms,

and (unless the context requires otherwise) includes all proceeds of such Goods and any product or mass which the Goods subsequently become part of.
Security Interest means the security interest provided for by these Terms.

19.2 References to the PPSA and the Privacy Act 1993 include that legislation as it is from time to time amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under such legislation.

19.3 A reference to any party under these Terms includes that party's successors and permitted substitutes and assigns.

19.4 Unless the context otherwise requires, words and phrases have the meanings given to them in, or by virtue of, the PPSA.