TERMS AND CONDITIONS: New Zealand

Payment terms

The terms of payment are strictly seven (7) days (or such other period as nominated by the supplier herein) from the date of invoice and payment is due and payable on that date. Cedex Steel and Metals Limited and its related bodies corporate (Supplier) may, at any time, unilaterally vary the terms of trade in its absolute and unfettered discretion.
Should the Applicant not pay for the goods or services supplied by the Supplier in accordance with the credit terms as provided herein, or as agreed in writing by the Supplier from time to time, the Supplier will be entitled to charge an administration fee of 5% above the Supplier's bank's indicator overdraft interest rate, whether or not the Supplier is at any time in overdraft.

Price

The price of the goods is that stated in the contract except that there shall be added to such price any change in duty, taxes or freight paid or payable by the Supplier.

Delivery

Dates or periods for delivery as stated in the contract are approximate only and are not essential terms and the Supplier accepts no liability for any failure to deliver the goods upon the stated dates or within the stated time periods.
The Applicant shall if required accept delivery of the goods by instalments and each instalment shall be deemed to be sold under a separate contract and shall be paid for separately. Any default by the Supplier in respect of any part delivery or instalment shall not entitle the Applicant to treat the contract as repudiated in regard to the balance of the goods delivered under the contract or instalments remaining to be delivered.
If the Applicant does not take delivery of the goods as and when stated in the contract the Applicant shall be liable for all storage charges and all associated costs, which costs are payable on demand and such storage shall be at the Applicant's risk.

Cancellation of orders

An order which has been accepted in accordance with these conditions can only be cancelled by the Applicant if the Applicant obtains the Supplier's prior consent in writing.
In the event of a cancellation in accordance with condition 7 hereof the Applicant shall reimburse the Supplier for all costs, loss of profits or expenses incurred by the Supplier as a result of the cancellation whether such expenses were incurred before or after the date of cancellation.

Jurisdiction

The Applicant acknowledges and agrees that this agreement will be governed by the laws of New Zealand, which are in force in New Zealand.
The Applicant acknowledges and agrees that any contract for the supply of goods or services between the Supplier and the Applicant is formed at the address of the Supplier.
The parties to this agreement submit to the non-exclusive jurisdiction of the courts of New Zealand and the relevant courts competent to hear appeals from those courts.

Claims

All claims must be notified to the Supplier within seven (7) days of the Applicant receiving the goods. If a commercial agreement cannot be reached between the Supplier and the Applicant the independent marine insurance surveyor's report recommendations will be final.
The Applicant shall not be entitled to withhold payment of any amount payable under the contract to the Supplier because of any disputed claim nor shall the Applicant be entitled to set-off against any amount payable under the contract any monies which are not then presently payable by the Supplier or in relation to which the Supplier disputes liability.

Security/charges

The Applicant charges in favour of the Supplier all of its estate and interest in any real property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged. For the avoidance of doubt, this clause constitutes an agreement to mortgage.
The Applicant charges in favour of the Supplier all of its estate and interest in any personal property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
Where the Applicant has previously entered into an agreement with the Supplier by which the Applicant has granted a charge, mortgage or other security interest (including a security interest as defined in the Personal Property Securities Act 1993 (NZ) (PPSA)) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this agreement and will secure all indebtedness and obligations of the Applicant under this agreement. The Supplier may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
In consideration of the Supplier providing goods and services to the Applicant and for the purposes of section 36(1) of the PPSA, the Applicant grants to us the following security interests:
1. A purchase money security interest over goods and the proceeds of the sale of goods, existing until the debt owed by the Applicant in respect of those goods is paid in full.
2. A security interest over all goods and their proceeds until the Supplier discharges the security interest.
3. A security interest in all the Applicant's right, title and interest in all of its other present and after acquired property being all of its personal property and all of its other property (including land) which will be on the terms of the standard form of General Security Agreement most recently published by the Auckland District Law Society at the date of these terms and conditions (including any memorandum of terms and conditions referred to in that agreement). For the avoidance of doubt, the security interest over land also constitutes an agreement to mortgage;
4. Each security interest is a continuing interest irrespective of whether there may be monies or obligations owing by the Applicant to the Supplier at a particular time.
5. The Supplier may register a financing statement in respect of its security interests. The Applicant waives its right to receive a copy of any verification statement confirming registration of a financing statement or financing change statement.
6. The Applicant agrees to do anything the Supplier reasonably requires to ensure it has perfected security interests, including signing any further documents and/or providing any further information (such information to be complete, accurate and up to date in all respects), which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register.
7. The Applicant gives irrevocable authority to the Supplier to enter any premises occupied by the Applicant or on which goods are situated at any reasonable time after default by the Applicant, or before default if the Supplier believes a default is likely, and to remove and repossess any goods and any other property to which goods are attached or in which goods are installed or incorporated. The Supplier will not be liable for any costs, damages, expenses or losses incurred by the Applicant or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. The Supplier may either resell any repossessed goods and credit the Applicant's account with the net proceeds of sale (after deduction of all liabilities and expenses (including legal expenses, repossession, storage and selling costs) incurred by the Supplier in enforcing or attempting to enforce its rights under these terms and conditions) or may retain any repossessed goods and credit the Applicant's account with the invoice value thereof less such sum as the Supplier determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
8. Where goods are retained by the Supplier, the Applicant waives the right to receive notice under s.120 of the PPSA and to object under s.121 of the PPSA.
9. The Applicant's rights under sections 114(1)(a), 125, 126, 127, 129, 131 and 132 of the PPSA do not apply, and the Applicant expressly waives those rights. Sections 133 and 134 of the PPSA do not apply.
10. The Supplier may in its discretion allocate any payment received from the Applicant towards any interest, costs, invoice or portion of an invoice that the Applicant determines (in any order that the Applicant determines) and may do so at the time of receipt or at any time afterwards and on default by the Applicant, the Supplier may reallocate any payments previously received and allocated. In the absence of any payment allocation by the SuplierSupplier, payment shall be deemed to be allocated in such manner as preserves the maximum value of the Suppler'sSupplier's purchase money security interest in the goods.
11. Notwithstanding anything in this clause , the Supplier shall have a particular and general lien over all the Applicant's property that is or which comes into the Supplier's possession, for all sums due to it at any time, whether or not such sums are overdue for payment. The rights given by this clause are in addition to and not in substitution for any rights that the Supplier may have under the PPSA and the exercise of rights either or lien or under the PPSA shall not constitute a waiver of other rights or give rise to an estoppel against the Supplier.

Purpose of credit

The Applicant acknowledges and agrees that the credit to be provided to the Applicant by the Supplier is to be applied wholly or predominantly for commercial purposes, that it is in trade, agrees that the Consumer Guarantees Act1993 will therefore not apply and that this provision is fair and reasonable. However, nothing in these terms and conditions shall be construed as an attempt by the Supplier to contract out of the Consumer Guarantees Act if the Applicant is not in trade and if the Act applies as a matter of law.

Formation of contract

Quotations made by the Supplier will not be construed as an offer or obligation to supply in accordance with the quotation. The Supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it. Only written acceptance by the Supplier of the Applicant's offer will complete a contract.
Placement of an order, either verbally or in writing, will imply acceptance of the Supplier's offer and of these terms and conditions.

Retention of title

Title in the goods does not pass to the Applicant until the Applicant has made payment in full for the goods and, further, until the Applicant has made payment in full of all the other money owing by the Applicant to the Supplier (whether in respect of money payable under a specific contract or on any other account whatsoever).
Until payment in full has been made to the Supplier, the Applicant will hold the goods in a fiduciary capacity for the Supplier and agrees to store the goods in such a manner that they can be identified as the property of the Supplier, and will not mix the goods with other similar goods.
The Applicant will be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been made to the Supplier, the Applicant will sell as agent and bailee for the Supplier and the proceeds of sale of the goods will be held by the Applicant on trust for the Supplier absolutely.
The Applicant's indebtedness to the Supplier, whether in full or in part, will not be discharged by the operation of clause hereof unless and until the funds held on trust are remitted to the Supplier.
The Applicant agrees that whilst property and title in the goods remains with the Supplier, the Supplier has the right, with or without prior notice to the Applicant, to enter upon any premises occupied by the Applicant (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Applicant) to inspect the goods of the Supplier and to repossess the goods which may be in the Applicant's possession, custody or control when payment is overdue.
The Applicant will be responsible for the Supplier's costs and expenses in exercising its rights under clause . Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Applicant against the Supplier, its employees, servants or agents.
The Applicant agrees that where the goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of the Applicant on those goods, and the Applicant hereby grants an irrevocable licence to the Supplier to do all things necessary to sell the goods bearing the name or trademark of the Applicant.

Cancellation of terms of credit

The Supplier reserves the right to withdraw credit at any time, whether the Applicant is in default under the terms of this agreement or not.
Upon cancellation with or without notice all liabilities incurred by the Applicant become immediately due and payable to the Supplier.
The Supplier shall be entitled, without prejudice to its other rights and remedies, to terminate wholly or in part any or every contract between it and the Applicant or to suspend any further deliveries under any contract in any of the following events:
1. if any debt is due and payable by the Applicant to the Supplier but is unpaid;
2. if the Applicant has failed to take delivery of any goods under any contract between the Applicant and the Supplier otherwise than in accordance with the Applicant's contractual rights;
3. if the Applicant has failed to provide any Letter of Credit, Bill of Exchange or any other security required by the Supplier; and
4. if the Supplier obtains unfavourable reports on the financial standing of the Applicant or if the Applicant becomes bankrupt or insolvent or makes an arrangement with its creditors or goes into voluntary or compulsory liquidation or has a receiver or official manager appointed, and in the event of such suspension or termination the Supplier shall be entitled as a condition of resuming delivery under any contract between it and the Applicant to require prepayment of such security as it may require for any further deliveries.

Indemnity

The Applicant agrees to indemnify the Supplier and keep the Supplier indemnified against any claim. This indemnity includes any legal fees and expenses the Supplier incurs in order to enforce its rights, on an indemnity basis.

Provision of further information

The Applicant undertakes to comply with any request by the Supplier to provide further information for the purpose of assessing the Applicant's creditworthiness, including an updated credit application.
If the Applicant is a corporation (with the exception of a public listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the Supplier may ask for new guarantors to sign a guarantee and indemnity.

Corporations

If the Applicant is a corporation, the Applicant warrants that all of its directors have signed this agreement and that all of its directors will enter into a guarantee and indemnity with the Supplier in relation to the Applicant's obligations to the Supplier.

Trustee capacity

If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the Supplier that:
1. the Applicant enters into this agreement in both its capacity as trustee and in its personal capacity;
2. the Applicant has the right to be indemnified out of trust assets;
3. the Applicant has the power under the trust deed to sign this agreement; and
4. the Applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.
The Applicant must give the Supplier a copy of the trust deed upon request.

Partnership

If the Applicant enters into this agreement as partners, the Applicant warrants that all of the partners have signed this agreement and that all of the partners will enter into a guarantee and indemnity with the Supplier in relation to the Applicant's obligations to the Supplier.
If the Applicant is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In the case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.

Insolvency

The Applicant warrants not to be in receipt of any information, notice or court proceedings that may lead to bankruptcy, appointment of an administrator, controller or managing controller, receiver or receiver manager or liquidator and that the Applicant does not intend to enter into any scheme of arrangement with creditors either formally, through a court or otherwise. Furthermore the Applicant warrants that none of its directors have been a director of a company placed in liquidation
If the Applicant becomes insolvent, the Applicant remains liable under this agreement for payment of all liabilities incurred hereunder. The Applicant remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Applicant being insolvent.

Waiver

A waiver of any provision or breach of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of this agreement by the Applicant must be made by the Applicant's authorised officer in writing.

Costs

The Applicant must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Applicant.
The Applicant will pay the Supplier's costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including collection costs, debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by the Applicant to the Supplier irrespective of whether pursuit of the recovery action, claim or remedy is successful.

Taxes and duty

The Applicant must pay any applicable GST on any taxable supply made by the Supplier to the Applicant under this agreement. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
If as a result of:
1. any legislation becoming applicable to the subject matter of this agreement; or
2. any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;

the Supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Applicant, then the Applicant must pay the Supplier these additional amounts on demand.

Set-off

The Supplier, at its sole discretion, may choose to deduct any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.

Miscellaneous

The Supplier is not liable for any loss caused to the Applicant by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond the Supplier's control.
In relation to the supply of goods, the Supplier's liability is limited to:
1. replacing the goods or supplying similar goods;
2. repairing the goods;
3. providing the cost for replacing the goods or for acquiring equivalent goods; and
4. providing the cost for having the goods repaired.
In relation to the supply of services, the Supplier's liability is limited to:
1. supplying the service again; or
2. providing for the cost of having the services supplied again.
The Supplier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Applicant.
The Applicant agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Applicant or the Applicant's authorised representative.
The Applicant further agrees that where the Supplier has rights in addition to those under the PPSA, those rights will continue to apply.

Severance

If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.

Variation

The Applicant agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Applicant.
Any proposed variation to these terms and conditions by the Applicant must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.
Variations requested by the Applicant will only be binding upon the Supplier if they are accepted in writing.

Entire agreement

This agreement constitutes the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between the Applicant and the Supplier, these terms and this agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these terms will prevail.

Privacy Act

The Applicant agrees to the terms of the Privacy Act 1993 (NZ) authorisation contained in this document.