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Black Magic Tackle Limited -Terms and conditions of trade
1.1 “BMT” shall mean Black Magic Tackle Limitedand its successors and assigns.
1.2 “Buyer” shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.
1.3 “Guarantor” means that person (or persons), or entity that agrees herein to be liable for the debts of the Buyer on a principal debtor basis.
1.4 “Goods” shall have the same meaning as in section 2 of the Sale of Goods Act 1908 and are goods supplied by BMT to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by BMT to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the cost of the goods as agreed between BMT and the Buyer subject to clause 4 of this contract.
2.1 Any instructions received by BMT from the Buyer for the supply of Goods shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of BMT.
2.4 None of BMT’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of BMT in writing nor is BMT bound by any such unauthorised statements.
3. Goods / Services
3.1 The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by BMT to the Buyer.
4. Price And Payment
4.1 At BMT’s sole discretion the Price shall be the price indicated on invoices provided by BMT to the Buyer in respect of Goods supplied.
4.2 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.3 At BMT’s sole discretion, payment for approved Buyer’s shall be due on 20th of each month following the posting of a statement to the Buyer’s address or address for notices.
4.4 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Buyer and BMT.
4.5 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by BMT.
5. Delivery Of Goods
5.1 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
5.2 For Goods with a total Price of less than $1000.00 (excluding GST), a flat freight fee of $5.00 (excluding GST) shall be reimbursed by the Customer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be BMT’s agent.
5.3 The failure of BMT to deliver shall not entitle either party to treat this contract as repudiated.
5.4 BMT shall not be liable for any loss or damage whatever due to failure by BMT to deliver the Goods (or any of them) promptly or at all.
6.1 If BMT retains title to the Goods nonetheless all risk for the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to title to them passing to the Buyer, BMT is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by BMT is sufficient evidence of BMT’s rights to receive the insurance proceeds without the need for any person dealing with BMT to make further enquiries.
7.1 The Buyer shall inspect the Goods on delivery and shall within fourteen (14) days of delivery notify BMT of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford BMT an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
7.2 For defective Goods which BMT has agreed in writing that the Buyer is entitled to reject, BMT’s liability is limited to either (at BMT’s discretion) replacing the Goods or repairing the Goods provided that:
(a) the Buyer has complied with the provisions of clause 7.1;
(b) the Goods are returned at the Buyers cost within seven (7) days of the delivery date;
(c) BMT will not be liable for Goods which have not been stored or used in a proper manner;
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
7.3 BMT may (in its discretion) accept the Goods for credit but this may incur a handling fee of 10% of the value of the returned Goods plus any freight.
8.1 For Goods not manufactured by BMT, the warranty shall be the current warranty provided by the manufacturer of the Goods. BMT shall not be bound by nor responsible for any term, condition, representation or warranty given by the manufacturer of the Goods.
9.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 3.0% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
9.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify BMT from and against all of BMT’s costs and disbursements including on a solicitor and own client basis and in addition all of BMT’s nominees costs of collection.
9.3 Without prejudice to any other remedies BMT may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), BMT may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. BMT will not be liable to the Buyer for any loss or damage the Buyer suffers because BMT exercised its rights under this clause.
9.4 If any account remains unpaid at the end of the second month after supply of the Goods or services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable in addition to the interest payable under clause 9.1 hereof.
9.5 In the event that:
(a) any money payable to BMT becomes overdue, or in BMT’s opinion the Buyer will be unable to meet its payments as they fall due, or;
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors, or;
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer,
then without prejudice to BMT’s other remedies at law:
(i) BMT shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to BMT shall, whether or not due for payment, immediately become due and payable.
10.1 It is the intention of BMT and agreed by the Buyer that property in the goods shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods, and
(b) The Buyer has met all other obligations due by the Buyer to BMT in respect of all contracts between BMT and the Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until BMT shall have received payment and all other obligations of the Buyer are met.
10.2 Receipt by BMT of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then BMT’s ownership of rights in respect of the Goods shall continue.
10.3 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from BMT to the Buyer BMT may give notice in writing to the Buyer to return the Goods or any of them to BMT. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
(c) If the Buyer fails to return the Goods to BMT then BMT or BMT’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
11. Personal Property Securities Act 1999
11.1 Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by BMT to the Buyer (if any) and all Goods that will be supplied in the future by BMT to the Buyer during the continuance of the parties relationship.
11.2 The Buyer undertakes to:
(a) sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which BMT may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, BMT for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of BMT;
(d) give BMT not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, or business practice); and
(e) immediately advise BMT of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.3 BMT and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.
11.4 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.5 Unless otherwise agreed to in writing by BMT, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.6 The Buyer unconditionally ratifies any actions taken by BMT under clauses 11.1 to 11.5 under and by virtue of the power of attorney given by the Buyer to BMT.
12. Security & Charge
12.1 Despite anything to the contrary contained herein or any other rights which BMT may have howsoever:
(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to BMT or BMT’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that BMT (or BMT’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should BMT elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify BMT from and against all BMT’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [11, 12.1(a) to (b)] inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint BMT or BMT’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as BMT and/or BMT’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of BMT and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or Guarantor’s obligations and indebtedness to BMT and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in BMT’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
13. Intellectual property
13.1 Where BMT has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in BMT, and shall only be used by the Buyer at BMT’s discretion.
13.2 The Buyer warrants that all designs or instructions to BMT will not cause BMT to infringe any patent, registered design or trademark in the execution of the Buyer’s order.
14.1 BMT may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice. On giving such notice BMT shall promptly repay to the Buyer any sums paid in respect of the Price for those Goods. BMT shall not be liable for any loss or damage whatsoever arising from such cancellation.
15. Privacy Act 1993
15.1 The Buyer and the Guarantor/s (if separate to the Buyer) authorises BMT to:
(a) collect, retain and use any information about the Buyer, for the purpose of assessing the Buyers creditworthiness or marketing products and services; and
(b) to disclose information about the Buyer, whether collected by BMT from the Buyer directly or obtained by BMT from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Buyer.
15.2 Where the Buyer is a natural person the authorities under (clause 15.1) are authorities or consents for the purposes of the Privacy Act 1993.
15.3 The Buyer shall have the right to request BMT for a copy of the information about the Buyer retained by BMT and the right to request BMT to correct any incorrect information about the Buyer held by BMT.
16. Buyers Disclaimer
16.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of BMT and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement.
17. Contractual Remedies Act
17.1 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) of the Contractual Remedies Act which states that nothing in the Contractual Remedies Act shall affect the Sale of Goods Act 1908, were omitted from the Contractual Remedies Act 1979.
18. Unpaid BMT’s Rights To Dispose Of Goods
18.1 In the event that:
(a) BMT retains possession or control of the Goods; and
(b) payment of the Price is due to BMT; and
(c) BMT has made demand in writing of the Buyer for payment of the Price in terms of this contract; and
(d) BMT has not received the Price of the Goods,
then, whether the title in the Goods has passed to the Buyer or has remained with BMT, BMT may dispose of the Goods and may claim from the Buyer the loss to BMT on such disposal.
19.1 From time to time BMT may supply the Customer with merchandising materials and display boards. The following terms will apply in these insatances;
(a) Any materials or stands will remain the property of BMT, and
(b) The material or stand will be displayed in the Customers premises (at the Customers risk) in a position agreed to between BMT and the Customer prior to delivery, and
(c) No product other that those supplied by BMT may be displayed on the stand with the merchandising material.
20.1 If any provision of these terms and conditions 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.
20.2 All Goods and Services supplied by BMT are supplied subject to the laws of New Zealand and BMT takes no responsibility for changes in the law that affect the Goods or Services supplied.
20.3 BMT shall be under no liability whatsoever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by BMT of these terms.
20.4 In the event of any breach of this contract by BMT the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of BMT exceed the Price of the Goods.
20.5 Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable control of either party.
20.6 The Buyer shall not set off against the Price amounts due from BMT.
20.7 BMT may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
20.8 BMT reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which BMT notifies the Buyer of such change.