Terms of Trade 

  1. Definitions and interpretation

    1. In these Terms, the following definitions apply:

AMINZ means Arbitrators and Mediators Institute of New Zealand Incorporated.

Blacksand Bronze means Blacksand Manufacturing Limited (NZCN 2412788), trading as “Blacksand Bronze” and “BlacksandBronze”.

CGA means the Consumer Guarantees Act 1993.

Customer means any customer of Blacksand Bronze or user of the Website.

Export Taxes means any and all taxes, duties and/or levies (of any nature or form) imposed by the destination country for the receipt of Products from New Zealand.  

GST means goods and services tax chargeable under the GST Act.

GST Act means the Goods and Services Tax Act 1985.

Intellectual Property means all intellectual property, proprietary and industrial rights of all varieties (whether existing in statute, at common law or in equity), including:

  1. all copyright (including any right arising under section 14 of the Copyright Act 1994), rights in databases, know-how, trade secrets, methods (including business methods), technical and non-technical information, processes and procedures (including management processes and procedures);

  2. trade marks (including those as defined in section 5(1) of the Trade Marks Act 2002), trade names, business names and domain names; 

  3. patents (including those within the meaning given to that term in section 5(1) of the Patents Act 2013), inventions, discoveries and formulae; 

  4. design rights (including as conferred under the Designs Act 1953, together with software and website designs), design details, specifications, concepts, evaluations (including risk evaluations), sketches, photographs, working drawings, models and presentation materials;

  5. all improvements, enhancements, modifications or adaptations to any of the foregoing rights;

  6. all allied, similar and associated rights, whether registered or unregistered, registrable or unregistrable that may subsist anywhere in the world; and

  7. all applications to register, and all renewals of, any of the foregoing rights (including any rights to apply for such registrations or renewals).

PPSA means the Personal Property Securities Act 1999.

Products means:

  1. all products purchased by a Customer from Blacksand Bronze, including via the Website; 

  1. all products made to order and produced by Blacksand Bronze for a Customer; 

  2. all products supplied by Blacksand Bronze and further identified in any invoice, purchase order or similar document issued by Blacksand Bronze to a Customer; 

  3. all products that are produced by Blacksand Bronze; 

  4. all products that are stored by a Customer in a manner that enables them to be identified as having been produced by Blacksand Bronze; and

  5. all of the Customer’s present and after-acquired property that Blacksand Bronze has performed work on or to or in which products or materials supplied by Blacksand Bronze have been attached or incorporated.

Security Interest has the meaning given to that term in section 17 of the PPSA.

Terms means these terms of trade, as amended and/or replaced from time to time.

Website means www.blacksandbronze.co.  

Working Day has the meaning given to that term in section 29 of the Interpretation Act 1999.

  1. In these Terms, the following rules of interpretation apply:

  1. References to persons include natural persons, companies and any other body corporates (wherever incorporated) and unincorporated bodies (wherever formed).

  1. Headings have been inserted for convenience only and will not affect the interpretation of these Terms.

  2. References to clauses are to those in these Terms, except where specified otherwise.

  3. References to the words including, include or similar words do not imply any limitation and are deemed to have the words without limitation following them.

  4. References to a statute or statutory provision means a New Zealand statute or statutory provision as amended, consolidated and/or replaced from time to time.

  5. A gender includes the other gender and the singular includes the plural and vice versa.

  6. Derivations of any defined word or term shall have a corresponding meaning.

  7. No rule of construction (including the contra proferentem rule applies to the disadvantage of a party because that party (or its relevant advisor) was responsible for the drafting of these Terms.

  1. Legally binding

    1. All Customers agree to be legally bound by these Terms.

    2. Customers will become legally bound by these Terms by:

      1. accessing and using the Website;

      2. clicking or ticking a clickwrap acceptance box via the Website, indicating its acceptance of this agreement;

      3. signing a separate document or form provided by Blacksand Bronze confirming it is bound by these Term (which may be signed by electronic means in accordance with Part 4 of the Contract and Commercial Law Act 2017); or

      4. receiving a copy of these Terms from Blacksand Bronze (including via email) and either agreeing to them in writing (which may be via email or return email) or the Customer purchasing Products after receipt of these Terms,

whichever applies or occurs earlier in time.

  1. Each Customer agrees that, prior to purchasing any Products, it has read and understood these Terms and had a full opportunity to review, consider, receive advice (including legal advice), comment on and negotiate amendments to these Terms prior to agreeing to and accepting them and becoming legally bound by them.

  1. The Website 

    1. Customers may only use the Website strictly in accordance with these Terms.  

    2. Any person or entity that accesses and uses the Website on behalf of or via another Customer, including all directors, officers, employees and independent contractors of any Customer that has been granted access by that Customer, confirms that he, she or it is fully authorised to do so by that Customer and agrees to these Terms in all respects.

    3. Any Customer that does not agree to these Terms or who is not authorised to access and use the Website must immediately cease doing so.

    4. Blacksand Bronze will endeavour to address (during normal business hours) all technical issues that arise on the Website.  However, Blacksand Bronze will not be liable for any loss or damage suffered as a result of any partial or total breakdown of the Website or any technical malfunctions on it, the Website being unavailable or performing slowly, or any viruses or other forms of interference that may damage any Customer’s computer system.

    5. Blacksand Bronze is permitted (in its sole and absolute discretion) to alter the Website, including all content, format, features and functionality, with or without notice to Customers and shall incur no liability for doing so.

    6. Each Customer will be responsible and liable for all activity that occurs through its use of the Website. 

    7. Blacksand Bronze shall not be liable for any content, representations, statements, products or other information or data posted to the Website by any Customer (to the extent that a Customer is able to do so).  

  2. Collection and use of information 

    1. Upon creating a profile on the Website, or providing any information via the Website, all Customers agree to:

      1. provide true, accurate, current and complete information about themselves as prompted by the Website (as applicable); and

      2. promptly notify Blacksand Bronze, via the Website or via email, of any changes to such information in order to ensure that it remains true, accurate, current and complete.

    2. Each Customer irrevocably authorises Blacksand Bronze to collect, retain and use any information about the Customer for the purpose of assessing the Customer’s credit worthiness or enforcing any rights under these Terms.

    3. Each Customer irrevocably authorises Blacksand Bronze to disclose any information obtained under clause 4.1 to any person for the purposes set out in clause 4.2.

    4. Where the Customer is a natural person the authorities granted under this clause 4 are authorities and consents for all purposes, including the Privacy Act 1993.

  3. Intellectual Property

    1. Subject to clause 5.2, all Customers agree that Blacksand Bronze solely owns all of the Intellectual Property existing or arising in the Website and all of the Products, and not the Customer (in any respect).

    2. Blacksand Bronze may specify in writing (at its discretion), whether on the Website or otherwise, that certain Intellectual Property is jointly owned with a contributing artist or collaborator as identified in writing by Blacksand Bronze.  Where Blacksand Bronze does so, all Customers agree that Blacksand Bronze and that relevant artist or collaborator so identified are the joint owners of such Intellectual Property, and not the Customer (in any respect). 

    3. Each Customer agrees to take such actions as may be reasonably required by Blacksand Bronze to perfect or enforce the Intellectual Property ownership provisions in this clause 5, which shall include executing and delivering any document required in order to perfect or enforce such title (including, for the avoidance of doubt, a deed of assignment of intellectual property).  

    4. No Customer may publish or use Blacksand Bronze’s trademarks, brand, branding or logos, except with Blacksand Bronze’s prior written consent (which may be given or withheld at its sole and absolute discretion).

    5. The provisions of this clause 5 shall survive the termination of these Terms.  

  4. Accuracy of information 

    1. Blacksand Bronze has made efforts to be as accurate as possible when describing its Products on the Website.  However, due to the nature of Blacksand Bronze’s manufacturing process, Blacksand Bronze does not and cannot warrant or represent that the Product descriptions, images, specifications, information or other content featured on or via the Website are:

      1. producible or repeatable; or 

      2. accurate, complete, reliable, current or error-free. 

  5. Online purchases

    1. If a Customer intends to purchase, or purchases, Products via the Website, that Customer must provide their real name, phone number, email address, payment details and any other information requested by Blacksand Bronze. 

    2. By entering their payment details, Customers warrant and represent that:

      1. they are providing valid and correct payment details; and

      2. they are the person referred to in the billing and purchase information provided.

    3. Blacksand Bronze reserves the right to not accept an order by a Customer if:

      1. it cannot obtain authorisation for the Customer’s payment;

      2. the Product ordered is unavailable or cannot be produced; or 

      3. the Customer does not meet the eligibility criteria set out, or otherwise contemplated, in these Terms.

    4. Blacksand Bronze reserves the right to:

      1. refuse to sell Products to any Customer at any time at its sole discretion; and

      2. restrict multiple quantities of orders for Products or restrict the number of Products being shipped to any Customer or postal address.

  6. Payment

    1. Unless agreed otherwise in writing by Blacksand Bronze, payment for all Products must be made by Customers upfront and in full at the time of order.

    2. A deposit may be required by Blacksand Bronze in respect of any Products, and if:

      1. Blacksand Bronze (at its sole discretion) requires a Customer to pay any deposit in advance of delivery of any Products (whether in whole or in part); and 

      2. the Customer fails to pay such deposit, 

there shall be no obligation on Blacksand Bronze to provide such Products. 

  1. All deposits shall be non-refundable, and deposits may (at Blacksand Bronze’s discretion) include freight costs, which will also be non-refundable.

  2. Blacksand Bronze may, in its sole discretion, offer an on-account or deferred payment option to Customers.  Where any such option is offered to a Customer, payment for Products by that Customer is due in full:

    1. on or before the 20th day of the month following the date of Blacksand Bronze’s invoice; or 

    2. on receipt of delivery of the Products, 

whichever is the earlier.

  1. Default interest may be charged by Blacksand Bronze on any amount owing by a Customer under these Terms at the rate of 10% per month, charged at a daily rate and added to the outstanding balance monthly.

  2. Any expenses, disbursements and legal costs incurred by Blacksand Bronze in the enforcement of any rights contained in these Terms shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.

  3. Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment:

    1. unless Blacksand Bronze has agreed in advance to this method of payment; and 

    2. until such negotiable instrument is paid or discharged in full to Blacksand Bronze’s satisfaction.

  1. Prices

    1. All final prices to be paid by Customers for the Products are:

      1. stated on the Website or as otherwise advised by Blacksand Bronze; 

      2. in New Zealand dollars;

      3. plus GST (if any), subject always to clause 9.5; 

      4. exclusive of GST, where the Products are received by the Customer outside of New Zealand (subject always to clause 9.5); and

      5. exclusive of shipping costs and/or Export Taxes, which are payable in accordance with clauses 9.2 and 9.3. 

    2. All shipping costs are due and payable by the Customer.  These costs will either be added on the payments page of the Website, or the Customer will be advised directly by Blacksand Bronze of the amount due and payable.

    3. All Export Taxes are calculated, and will be due and payable by the Customer, in the relevant destination country (if applicable).

    4. Prices are subject to change, effective immediately upon posting to the Website or other form of notification by Blacksand Bronze.

    5. If the Inland Revenue Department or any court or tax authority determines that any GST (or similar tax, whether arising under the GST Act or otherwise) is payable in respect of the Products purchased by a Customer, and such GST (or similar tax) was not paid by the Customer at the time of purchase, then the Customer must pay such GST (or similar tax) to Blacksand Bronze on the written demand of Blacksand Bronze.

  2. Title and risk  

    1. Title in any and all Products supplied by Blacksand Bronze passes to the Customer only when the Customer has made payment in full for all Products provided by Blacksand Bronze in accordance with these Terms and of all other sums due to Blacksand Bronze by the Customer on any account whatsoever (including payment of default interest).  

    2. Products shall remain at Blacksand Bronze’s risk until delivery to the Customer.  Upon delivery, all risk and responsibility for loss, theft, damage and destruction for the Products shall pass from Blacksand Bronze to the Customer.  

    3. Delivery shall be deemed complete when the Customer takes possession of the Products, whether directly from Blacksand Bronze or by a carrier, courier or other bailee.

  3. Security Interest

    1. Until all sums due to Blacksand Bronze by the Customer have been paid in full, the Customer grants to Blacksand Bronze a Security Interest in all Products that it supplies to the Customer.

    2. If the Products are attached, fixed or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in those Products shall remain with Blacksand Bronze until the Customer has made payment for all Products in accordance with these Terms.

    3. The Customer grants irrevocable authority to Blacksand Bronze to enter any premises:

      1. occupied by the Customer; or 

      2. on which Products are situated, 

at any reasonable time after default by the Customer or before default if Blacksand Bronze believes a default is likely and to remove and repossess any Products and any other property to which Products are attached or in which Products are incorporated.  

  1. Blacksand Bronze shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of any action taken in the exercise of its rights under this clause 11, nor be liable in contract or in tort (including negligence) or otherwise in any way whatsoever unless by statute such liability cannot be excluded.  

  2. Blacksand Bronze may either:

  1. resell any repossessed Products and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs, including default interest); or 

  1. retain any repossessed Products and credit the Customer’s account with the invoice value thereof less such sum as Blacksand Bronze reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.

  1. Where Products are retained by Blacksand Bronze pursuant to clause 11.5 the Customer waives the right to receive notice under section 120 of the PPSA and to object under section 121 of the PPSA.

  2. The Customer agrees that Blacksand Bronze may register a financing statement (as that term is defined in section 135 of the PPSA) in relation to any Security Interest granted to it pursuant to these Terms.

  3. If the Security Interest granted under this clause 11 becomes enforceable, Blacksand Bronze may appoint one or more receivers in respect of the secured party on terms and conditions considered necessary or expedient by Blacksand Bronze.  

  4. Without affecting any other powers and authorities conferred on a receiver (whether under the Receiverships Act 1993 or at law or otherwise), a receiver appointed under clause 11.8 has the power to do all things in relation to the secured property as if the receiver had absolute ownership of the secured property.

  1. No refunds for made to order Products

    1. All Customers must place orders carefully and correctly. 

    2. No returns or refunds are available for our Products.  

  2. Events of Default

    1. The following shall constitute defaults by the Customer under these Terms (together, Events of Default and each an Event of Default):

      1. Non-payment of any sum by the due date.

      2. The Customer intimates that, or threatens that, it will not pay any sum by the due date.

      3. Any Products are seized by any other creditor of the Customer or any other creditor intimates or threatens that it intends to seize Products.

      4. Any Products in the possession of the Customer are damaged while any sum due from the Customer to Blacksand Bronze remains unpaid.

      5. The Customer is insolvent, cannot pay its debts as and when they fall due, becomes bankrupt or is put into liquidation or a receiver is appointed to any of the Customer’s assets.

      6. The Customer fails to comply with a statutory demand made in accordance with section 289 of the Companies Act 1993.

      7. A court judgment is entered against the Customer and remains unsatisfied for 5 Working Days.

    2. Blacksand Bronze shall, without any liability and without prejudice to any other right it has in law or in equity, have the right by notice in writing to the Customer to suspend or cancel in whole or in part its obligations under these Terms for the supply of Products to the Customer if the Customer has committed an Event of Default.

    3. Any cancellation or suspension of these Terms shall not affect Blacksand Bronze’s claim for money due to it at the time of cancellation or suspension or for damages for any breach of these Terms by the Customer or obligations that it owes to Blacksand Bronze.

  3. Warranties

    1. No warranty, representation, condition or premise expressed or implied by law or otherwise applies to the Products except:

      1. where they are required pursuant to the CGA; or

      2. as expressly set out in clause 14.4. 

    2. Blacksand Bronze does not provide any warranty or representation that the Products are or will be fit and suitable for the purpose for which they are required by the Customer, and shall not be liable if they are not.

    3. Blacksand Bronze makes no warranty or representation that the Website or Products are appropriate or available for use in all countries or that they satisfy the laws of all jurisdictions.  All Customers are responsible for ensuring that their access to and use of the Website, and purchase and use of the Products, is not illegal or prohibited in their relevant jurisdiction.

    4. Blacksand Bronze warrants that the Products will be free from defects in materials and workmanship, in all material respects, for a period of five years from the date of purchase by the Customer.

    5. The warranty at clause 14.4 shall not apply to Products that are subject to:

      1. damage caused by accidents, acts of God, misuse, abuse, or improper use, maintenance or repair;

      2. damage or failure due to dismantling, alteration, or repair by any person that is not authorised by Blacksand Bronze;

      3. damage or any form of failure or corrosion due to not being installed in strict accordance with the instructions and advice of Blacksand Bronze (whether provided in writing to the Customer, on the Website or otherwise), which may include (for the avoidance of doubt) the requirement:

        1. to use additional products in connection with such installation; and/or

        2. for specialist installation and maintenance of any Product that includes or incorporates silicon bronze alloy due to its potential reactivity with other materials or finishes that have not been provided directly by Blacksand Bronze;            

      4. any unique variations as a result of its casting, alchemy, manufacturing, machining or finishing;

      5. patinas or the colour of the metal changing due to oxidation;

      6. fair wear and tear; and

      7. any marks or textures as a result of the molten metal being poured and cooling.

  4. Limitation of liability

    1. To the extent that Blacksand Bronze is liable to a Customer for any reason for any loss suffered or liability incurred by a Customer arising from any breach of these Terms, or for any other reason (including a Customer’s use of or reliance on the Website), Blacksand Bronze’s liability’s (whether arising in contract, tort (including negligence) or otherwise) is limited to the amount paid by that Customer to Blacksand Bronze or the provision of replacement Products (at the sole discretion of Blacksand Bronze).

    2. Blacksand Bronze shall not be liable for any indirect, consequential or special loss or damage of any kind whatsoever, including whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the Website and/or Products provided by Blacksand Bronze to the Customer.

  5. Indemnity

    1. Each Customer hereby indemnifies, and will keep indemnified, Blacksand Bronze against all forms of liability, actions, proceedings, demands, costs, charges and expenses which Blacksand Bronze may incur or be subject to or suffer as a result of that Customer’s use of the Website and/or which arises in connection with any breach by the Customer of these Terms or any negligence of the Customer.

  6. Privacy policy

    1. Blacksand Bronze’s privacy policy (which can be viewed on the Website) shall apply to all information, data or other content which is generated through each Customer’s use of the Website.  

  7. Notices 

    1. All notices and other communications to be given under these Terms must be in writing and be delivered to the physical address or email address from time to time designated by that party in writing to the other party for such purpose.  

    2. Any notice or communication given under these Terms shall be deemed to have been received:

      1. at the time of delivery, if delivered by hand; and

      2. if sent by email, on the date and time at which it enters the recipient's information system, as evidenced (if required by the recipient, where delivery is disputed) in a confirmation of delivery report from the sender's information system which indicates that the email was sent to the email address of the recipient.  

    3. Any notice or communication received or deemed received after 5.00pm or on a day which is not a Working Day in the place to which it is delivered, posted or sent will be deemed not to have been received until the next Working Day in that place.

  8. Dispute resolution

    1. The following provisions shall apply to any dispute arising under or relating to these Terms (a Dispute) between a Customer and Blacksand Bronze (together, the Disputing Parties and each a Disputing Party) if Blacksand Bronze requires that such provisions apply in respect of the Dispute: 

      1. The Disputing Parties must use reasonable endeavours to resolve any and all Disputes by negotiation at first instance.  

      2. If the Disputing Parties cannot resolve their Dispute by negotiations within 20 Working Days a Disputing Party may, by written notice to the other, require that the Dispute be dealt with by mediation under the following terms:

        1. The mediation shall be conducted in accordance with the Mediation Protocol of AMINZ then in force (or any protocol or mediation agreement which replaces it).

        2. The mediation shall be conducted by a mediator and at a fee agreed in writing by the Disputing Parties.  Failing agreement between the Disputing Parties within 10 Working Days of the giving of the notice requiring mediation, the mediator will be selected and his or her fee determined by the chairperson for the time being of AMINZ (or his or her nominee).

        3. The mediation shall take place in Auckland, New Zealand at such address as determined by the mediator.  

        4. The costs of the mediation, excluding the Disputing Parties' own legal and preparation costs, will be shared equally by the Disputing Parties.

      3. No Disputing Party may initiate or commence court or arbitration proceedings relating to a Dispute unless it has complied with the procedure set out in this clause 19, provided that application may still be made to the courts: 

        1. for interlocutory relief; or

        2. to recover a debt payable. 

  9. General provisions

    1. Blacksand Bronze reserves the right to amend these Terms at any time.  Any Customers who continues to use the Website after any amendments will be deemed to have agreed to such amendments.  

    2. Blacksand Bronze will not be deemed to have waived any right under these Terms unless the waiver is in writing from Blacksand Bronze.  A failure to exercise or delay in exercising any right by Blacksand Bronze under these Terms will not operate as a waiver of that right.  Any such waiver will not constitute a waiver of any subsequent or continuing right or of any other provision in these Terms.

    3. No Customer shall be permitted to assign or transfer any of their rights or obligations under these Terms without Blacksand Bronze’s prior written consent.  Blacksand Bronze shall be entitled to assign and transfer any of its rights or obligations under these Terms, and the consent of Customers shall not be required for any such assignment or transfer.

    4. Each Customer will sign all documents, and do all things, as may reasonably be required in order to give effect to the provisions of these Terms.

    5. The guarantees contained in the CGA are excluded where the Customer acquires Products from Blacksand Bronze for the purposes of a business in terms of section 2 and 43 of the CGA.

    6. Nothing in these Terms creates any contractual privity rights or third party beneficiary rights in any third party under Part 2, Subpart 1 of the Contract and Commercial Law Act 2017 or otherwise.

    7. If any provision in these Terms becomes invalid or unenforceable, the remainder of these Terms will remain valid and enforceable to the fullest extent permitted by law.

    8. These Terms will be governed by and construed in accordance with the laws of New Zealand.  All Customers and Blacksand Bronze submit to the non-exclusive jurisdiction of the courts of New Zealand for any matter arising under or relating to these Terms.