Terms of Trade
• Company means FerNZ Products Ltd
• Buyer means the person, or Company (legal trading name and names of the owner and/or directors) buying the goods from the Company.
• Products: FerNZ range product.
• Contract means the contract between the Company and the Buyer for the purchase of the goods.
• Date of the contract means where the contract arises from a quotation given by the Company to the date:
i） of acceptance of the order by the Company
ii） upon written notification of acceptance of the quotation is received by the Company.
• Contract price means the price of goods as agreed between the Buyer and the Company.
• Person includes a corporation, association, firm, company, partnership or individual.
• Quotation means price on offer for a fixed term of three (3) months.
• Manager is the companies’ appointed decision maker.
• PPSA means the Personal Property Securities Act 1999.
In the case of any conflict between these Terms of Trade and the Buyer’s confirmation of this Term or any other document supplied by the Buyer, these terms of Trade shall prevail.
2.1 The Company will provide a quotation setting out the price and quantity of the goods to be supplied. The quotation will be valid for a month from the date it was given.
2.2 The Company may withdraw any quotation before the Buyer signs the acceptance.
2.3 The quotation price may be increased if the Company suffers any cost increases which is beyond its control in the supply production and/or delivery of goods between the date of contract (or, where the contract arises from a quotation the date of quotation) and the date of delivery, or if the Buyer varies or alters its requirements of the goods.
If any instruction is received by the Company from the Buyer for the supply of products and/or services, it shall constitute acceptance of the terms and conditions contained herein.
Upon acceptance of these terms and conditions by the Buyer, the terms and conditions are definitive and binding.
4. Terms and Conditions
These terms and conditions and any subsequent terms and conditions issued by the Company shall apply to all orders for the goods and the services made by the Buyer after the date and time at which these conditions are first delivered or sent by email or facsimile to, or otherwise brought to the notice of, any employee, staff member or representative of the Buyer. It shall be the Buyer’s responsibility to ensure that these conditions are promptly brought to the attention of the appropriate staff of the Buyer, and accordingly any order made by the Buyer after the date and time described above in this clause shall be deemed to be an acceptance of these conditions.
5.1. Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Buyer’s place of business, and delivery shall take place within a reasonable time of the order being accepted by the Company. If a delivery date is specified in the Contract, time shall not be of the essence in relation to such delivery.
5.2. The Company reserves the right to deliver the Goods by installments. Where Goods are delivered by installments the Company reserves the right to treat each installment as a separate Contract.
5.3. Subject to the other provisions of these terms the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay beyond a reasonable period entitle the Buyer to terminate or rescind the Contract.
5.4. If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery then risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence), the Goods will be deemed to have been delivered and the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
6.1. The Goods are at the risk of the Buyer from the time of delivery or deemed delivery (as per term 5.4 above).
6.2. Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3. Until ownership of the Goods has passed to the Buyer, the Buyer must:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
(e) hold the proceeds of the insurance referred to in condition 6.3(d) on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4. The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) the Buyer is unable to pay its debts as they fall due or suspends payment of any of its debts or enters into any arrangement with creditors for the payment of any of its debts or an administrator, receiver or liquidator is appointed in respect of the Buyer’s assets or any application is made for the appointment of such officer, a winding up resolution is passed or a winding up order is made in respect of the Buyer or the Buyer suffers any insolvency process similar to those specified in this condition 6.4 (a) in any jurisdiction
(b) the Buyer encumbers or in any way charges any of the Goods.
6.5. The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.6. The Buyer grants the Company, its agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7. Price: $NZ
7.1. The price shall be indicated on the quotation provided by the Company in respect of the products and/or service provided.
7.2. Time for payment for the goods and/or service will be: within 15 days of invoice.
7.3. The Buyer agrees that the cost price shall be determined by the Company.
7.4. The Company reserves the right to implement a surcharge for alterations to specifications of products after the order has been placed.
7.5. Prices do not include GST.
7.6. Amended price list will be sent 4 weeks in advance to when it will be operable.
8.1. Payment is to be made in full without deduction or setoff. The method of payment will be as agreed to between the Buyer and The Company.
8.2. Subject to any provision in the contrary in the Contract, payment, otherwise arranged in advance and confirmed in writing by Magic Group Ltd shall be received within 15 days of the Company’s invoice to the Buyer, which shall be issued promptly on or after dispatch of the goods.
8.3. Late payment shall incur interest at the rate of 5% per annul calculated on a daily basis. This shall be payable on any monies outstanding under the Contract from the date payment was due until the date payment is received by the Company, but without prejudice to the Company’s other rights or remedies in respect of the Buyer’s default in failing to make payment on the due date.
8.4. Without prejudice to any other remedies the Company may have, if at any time the Buyer is in breach of any obligation, including those relating to payment, the Company may suspend or terminate the supply of Goods to the Buyer and any of its obligations under the terms and conditions. The Company will not be liable to the Buyer for any loss or damage the Buyer suffers because the Company exercised its right under this clause.
8.5. In the event that:
a) Any money payable to the Company becomes overdue, or in the Company’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 befit of its creditors: or
c) A receiver, manager, liquidator or similar person is appointed in respect of the Buyer or any asset of the Buyer: then without prejudice to the Company’s other remedies at law:
Then the Company shall be entitled to cancel all or any part of any order of the Buyer that remains unperformed in addition to, and without prejudice to any other remedies: and all amounts owing to the Company shall, whether or not due for payment, immediately become payable.
9. Intellectual Property Rights
The buyer does not, by reason of the purchase of the products, acquire any rights to the copyright, patent, trademark, design, and other intellectual property rights held by the company.
No liability is accepted for FerNZ products which have been manufactured under the directions or specifications of the buyer and the buyer shall protect the vendor from any claims for infringement of the intellectual property rights of third parties which might result. Where the company is at the request of the buyer, copyright in the product remains the property of the vendor and the purchaser may use the article as licensee.
10.1. The contract constitutes a security interest in the goods supplied by the Company to the Buyer for the purposes of the PPSA as security for payment by the buyer of all amounts due under the Contract, including any future amounts.
10.2. The Buyer agrees to promptly execute and deliver to the Company all assignments, transfers and other agreements and document and do anything else which the Company may deem appropriate to perfect the Company’s security interest over the Buyer, or obtain the priority required by the Company or register (and renew) a financing statement for security interest in favour of the Company.
Laws These Terms of Trade will be interpreted in accordance with applicable New Zealand government legislation, which will have exclusive legal jurisdiction over any dispute in relation to the products and/or services or these Terms of Trade.
12. Dispute resolution
The Company will endeavour to resolve any dispute between the Buyer and itself without the need for Court proceedings. Any such attempt is without legal prejudice.
13. Reservation of title
Ownership and title of the goods remain with The Company until the purchased price and all other monies owing by the Buyer, under the contract or any other contract to The Company, have been paid in full.
The Company warrants that it will replace or make good any defects in the goods, if written notice of the claim is received by the Company within seven (7) days from the date the goods were delivered. No claim shall be accepted under such warranty if any attempt to correct the defective good is made by any person not authorised by the Company, or if the defective goods have been modified or incorrectly stored, maintained or used. If the Company elects to replace any defective goods such work shall be undertaken at such places as the Company may reasonably specify and the Buyer shall be responsible at its cost and risk for shipment of the defective goods to the place specified.
The Company shall not be liable for any loss of any kind whatsoever suffered by the Buyer as a result of any breach of any of the Company’s obligations under the contract, including any cancellation of the contract or any negligence on the part of the Company, its servants, agents or contractors, nor shall the Company be liable for any loss, damage or injury caused to the Buyer’s servants, agents, contractors, buyers or any other persons. The buyer shall indemnify the Company against any such person.