1.1 “Seller” means Fero Ltd and its successors and assigns.
1.2 “Customer” means the Customer or any person acting on behalf of and with the authority of the Customer.
1.3 “Goods” means any items or products sold by the Seller to the Customer under these Terms (and where the context so requires, includes Services).
1.4 “Intellectual Property” means all intellectual property rights including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, procedures, calculations and all other statutory and common law rights and interests.
1.5 “Services” means all services supplied by the Seller to the Customer and includes any advice or recommendations.
1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and the Customer (and subject to clause 5).
1.7 “Terms” means these terms of trade.
2.1 Upon receipt from the Customer of a request for Goods, the Seller will provide the Customer with a quote for the fulfilment of that request (Quote).
2.2 Quotes shall remain open for acceptance for the time frame specified in the Quote the Seller provides to the Customer (unless withdrawn by the Seller prior to acceptance).
2.3 The Seller may, by giving notice to the Customer at any time before the Customer accepts a Quote, amend the Quote for any reason it deems necessary, including to reflect an increase in the Price of the Goods.
2.4 Unless stated otherwise, any price quoted for Goods by the Seller is an estimate of the anticipated cost of the Seller to provide the Goods (subject to clause 5).
3. Acceptance of Quotes
3.1 The Customer’s acceptance of a Quote must be communicated to the Seller in writing. The submission of a written purchase order by the Customer will constitute acceptance of the most recent valid Quote provided by the Seller.
3.2 When the Customer accepts a Quote:
(a) acceptance of that Quote will create an order (Order), and will also signify the Customer’s acceptance of these Terms (to the exclusion of the Customer’s terms (if any));
(b) any deposit, tooling, applicators, and any other amounts noted on the Quote as being payable upon Order placement will become immediately due and payable; and
(c) the Customer agrees to provide to the Seller all relevant information necessary for the Seller to complete the Order, such as any applicable delivery details (or any other details the Seller may reasonably request).
3.3 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.4 Upon placement of an Order, these Terms and are irrevocable and can only be varied or rescinded with the written approval of one of the Seller’s directors.
3.5 The Customer undertakes to give the Seller not less than seven (7) 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 postal or email addresses or business practice).
4. Production and Procurement of Goods
4.1 The Seller will produce/procure and deliver the Goods in accordance with:
(a) the requirements set out on the Quote accepted by the Customer; and
(b) any other requirements expressly agreed to by the Seller in writing).
4.2 Where an Order includes a forecast of Goods required by the Customer over a duration of time (Forecast), the Seller will produce/procure Goods in accordance with that Forecast (and clause 11.4 will apply where that Forecast is reduced).
5. Price and Payment
5.1 Following the Customer’s placement of an Order, the Seller will issue an invoice to the Customer for the Price of that Order (Invoice). The Price shall, subject to clause 5.2, be the Price listed on the Quote and agreed to by the Customer by confirming the Order.
5.2 Notwithstanding clause 5.1:
(a) Prices set out in a Quote are exclusive of GST and any other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in that Quote;
(b) Prices listed in a Quote are exclusive of any costs of freight and delivery, except to the extent that such costs are expressly included in that Quote; and
5.3 At the Seller’s sole discretion, a deposit may be required. The deposit amount or percentage of the Price will be stipulated in the Quote and shall become immediately due and payable upon acceptance of the Quote.
5.4 Payments for Invoices shall be due on the 20th of the month following the provision of each Invoice to the Customer.
5.5 Payment may be made by cash, 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 Customer and the Seller.
5.6 Payment of all money by the Customer will be without set-off or deduction of any kind.
5.7 The Seller may withhold delivery of the Goods if the customer has not paid any deposit or Invoice by the due date.
6. Delivery of Goods
6.1 Delivery of the Goods shall occur:
(a) where the Goods are to be transited via carrier to an address nominated by the Customer, when the Goods are delivered to that carrier; or
(b) where the Goods are to be collected by the Customer (or a third party nominated by the Customer), at the time that the Seller instructs that the Customer shall collect those Goods from the nominated premises of the Seller,
6.2 For the avoidance of doubt (and in accordance with clause 7) the Customer is responsible for insuring the Goods during any carriage (unless otherwise agreed in writing).
6.3 The Seller may deliver the Goods in separate Deliveries (in accordance with any agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in these Terms.
6.4 If the Seller provides an estimated time for any Delivery of Goods, such time is an estimate only. Should an estimated delivery time be missed, this shall not give the Customer grounds to cancel an Order or otherwise claim any loss.
6.5 The Customer shall take any agreed Delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
6.6 The Customer shall otherwise be deemed to have accepted any Delivery except where clause 10 applies.
7. Risk in Goods
7.1 Risk in the Goods transfers from the Seller to the Customer upon Delivery.
7.2 The Customer shall insure the Goods to full replacement value from the time that risk transfers up until the point that the Customer has paid the Seller in full for those Goods.
8. Title to Goods
8.1 Title to the Goods transfers from the Seller to the Customer upon payment in full for the respective Goods.
8.2 Until payment in full has been made for any Goods, the Buyer agrees to:
(a) keep those Goods clearly identified and separated from other property; and
(i) sell, transfer, pledge or otherwise dispose of the Goods; or
(ii) charge the Goods in any way nor grant nor otherwise give any interest in the Goods to any third party.
8.3 Should the Customer breach clause 8.2:
(a) if the Goods have been sold or any cash has been received in respect of those Goods (including any insurance proceeds where the Goods have been damaged), the Customer shall hold any such amounts on Trust for the Seller to be applied only towards payment of any outstanding amounts owing to the Seller in respect of those Goods;
(b) if the Goods have been incorporated or converted into other products, the Seller shall be the owner of those products until such time as payment in full has been received for the Goods incorporated or converted into those other products; and
(c) the Customer will otherwise indemnify the Seller for all loss suffered due to the Customer’s breach of clause 8.2.
8.4 If any of the Goods are damaged or destroyed prior to title to those Goods passing to the Customer but following transfer of risk in the Goods to the Customer, the Seller 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 directly from the insurer. This applies whether or not the Price has become due for payment under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
8.5 For the avoidance of doubt, the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.
9. Installation of Goods
9.1 All installations of Goods must be completed by an appropriately qualified and registered tradesperson.
10. Defective Goods
10.1 The Customer shall inspect the Goods on Delivery and shall within seven (7) days notify the Seller where there are any material discrepancies or anomalies as against the relevant Order, and where those discrepancies or anomalies arose while the Goods were at the risk of the Seller (Rejection).
10.2 A Rejection must be in writing and must state:
(a) the Goods to which the Rejection relates (including the relevant Invoice number); and
(b) the reason for the Rejection.
10.3 All Goods which are not included in the Rejection shall be deemed accepted by the Customer (unless a separate Rejection is provided in relation to those Goods in accordance with this clause).
10.4 Where the Customer notifies the Seller of a Rejection, the Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following such notification.
10.5 If the Seller does not dispute the Rejection:
(a) the Seller shall be responsible for recollecting such Goods within a reasonable timeframe, and shall endeavour to repair or replace the Goods within a reasonably achievable timeframe and at no addition cost to the Customer, provided that:
(i) the Customer has complied with the provisions of clause 9;
(ii) the Seller will not be liable for the replacement of Goods which have not been stored or used in a proper manner;
(iii) 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; and
(b) The Seller may (in its discretion) accept the return of the Goods for credit rather than repair or replace the Goods, but this may incur a fee of any return freight.
10.6 If the Seller does dispute the Rejection, the Seller will provide the Customer with the reasons for such dispute in writing. Reasons for disputing a Rejection may include, but are not limited to, where the Seller reasonably believes that:
(a) the Goods provided do in fact meet the requirements of the Order; or
(b) the grounds upon which the Customer wishes to reject the goods arose:
(i) due to the fault of the Customer; or
(ii) otherwise arose while the Goods were at the risk of the Customer pursuant to clause 7.
10.7 If the Seller disputes the Rejection pursuant to clause 10.6, the parties will discuss in good faith how to resolve the disagreement.
11. Cancellation of Orders
11.1 Following the placement of an Order, that Order may not be cancelled without the express written permission of the Seller, the provision of which shall be at the sole discretion of the Seller.
11.2 For transparency, the Seller is unlikely to allow an Order to be cancelled where:
(a) the Seller has incurred any costs associated with fulfilling the order (including the costs of acquiring any inputs to produce any Goods); or
(b) the Order relates to a custom order made to customer specifications, or the Goods under that Order are otherwise non-catalogue items.
11.3 Where the Seller exercises its discretion to cancel an Order notwithstanding that it has already incurred costs in relation to that Order, the Seller shall be entitled to invoice the Customer for those costs.
11.4 For the avoidance of doubt, a decrease in a Forecast will be considered a cancellation (of the amount of that decrease in quantity of Goods ordered when compared to the original Forecast) for the purposes of this clause 11.
12. Recall of Goods
12.1 Should the Seller deem there to be a valid reason for any goods to be deemed unsafe or otherwise injurious to health, the Seller may provide written notice (Recall Notice) to the Customer requiring that the Customer immediately cease to use and return the affected Goods (Recalled Goods).
12.2 Where the Seller issues a Recall Notice, the Recalled Goods will be considered indisputably defective Goods for the purpose of clause 10 and the defective Goods process set out in that clause shall apply.
12.3 Where a recall matter arises, the Customer agrees that the fact and circumstances of the of the recall matter are to be considered confidential information for the purposes of clause 18 and that the Customer shall not disclose the fact or circumstances of the recall matter with any third parties.
13.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations on us which cannot by law (or which can only to a limited extent by law) be excluded. The Seller exclude all warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
13.2 Where the Customer acquires Goods from us for the purposes of a business:
(a) the parties acknowledge and agree that:
(i) the Customer is acquiring the Goods covered by these Terms for the purposes of a business in terms of sections 2 and 43(2) of the Consumer Guarantees Act 1993;
(ii) the Goods are both supplied and acquired in trade for the purposes of the Fair Trading Act 1986 and the parties agree to contract out of sections 9 (Misleading and deceptive conduct generally), 12A (Unsubstantiated representations), and 13 (False or misleading representations); and
(b) the Customer agrees that all warranties, conditions, and other terms implied by the Consumer Guarantees Act 1993 or sections 9, 12A, and 13 of the Fair Trading Act 1986 are excluded from these Terms to the fullest extent permitted by law and the parties further acknowledge and agree that it is fair and reasonable that the parties are bound by this clause.
13.3 Where Goods supplied are not manufactured by the Seller, the warranty that applies to those Goods will be on the terms and conditions of the warranty provided by the manufacturer of the Goods. The Seller shall be under no obligation whatsoever to provide any additional warranties beyond those offered by the manufacture.
14. Default & consequences of default
14.1 The Customer will be in Default if it:
(a) fails to pay an amount due under these Terms by the due date for payment;
(b) commits a breach of any of its other obligations under these Terms, or the terms of any other contract it has entered into, or enter into in the future, with the Seller or one of the Seller’s related entities;
(c) becomes insolvent, are wound up, have a receiver appointed, enter into any composition or arrangement with its creditors, do any act which would renders it liable to be placed in liquidation or have a receiver appointed over its property, commit an act of bankruptcy, cease to be of full legal capacity, or die;
(d) Goods that the Seller has retained title to are at risk; or
(e) an event or a series of events (whether related or not) occurs which, in our opinion, may cause a material adverse change in the Customer’s ability to meet its obligations to the Seller under these Terms.
14.2 If the Customer is in Default then the Seller may, at its sole discretion, do any one or more of the following:
(a) charge the Customer default interest at the rate of 12% per annum on any late payments calculated on a daily basis from the due date until the date payment is received;
(b) require the Customer to remedy the default in the manner and within the period notified by the Seller;
(c) require the Customer to all amounts owing to the Seller immediately;
(d) suspend or terminate the Customer’s account with the Seller;
(e) enforce the any security interest held by the Seller under these Terms;
(f) exercise any rights that the Seller has under these Terms or that are available at law.
14.3 Where the Customer is in Default, the Seller may suspend or terminate the Customer’s account with the Seller at any time in its sole discretion. If the Customer’s account is terminated, it must immediately pay to the Seller any amounts owing. Termination will not affect any of the Seller’s rights that have arisen before termination, and the Seller will not be liable to the Customer for any loss or damage the Customer suffers as a result of the Seller exercising its rights under this clause.
14.4 The Customer must pay the Seller’s costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of its rights, remedies, and powers under these Terms.
14.5 If any account remains unpaid at the end of the second month after supply of the Goods, an immediate amount of the greater of:
(b) or 10.00% of the amount overdue (including any interest owing),
shall be levied for administration fees which sum shall become immediately due and payable.
15. Personal Property Securities Act 1999
15.1 Upon assenting to these terms and conditions in writing the Customer 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 that will be supplied in the future by the Seller to the Customer during the continuance of the party’s relationship while the Seller retains title to those Goods (in accordance with clause 8).
15.2 The Customer 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 the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Seller 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) give the Seller not less than fourteen (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, or business practice); and
(d) immediately advise the Seller 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; and
(e) not grant any other securities interests or any liens over Goods that the Seller holds a security interest in.
15.3 The Seller and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms.
15.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
15.5 Unless otherwise agreed to in writing by the Seller, the Customer further waives its right to receive a verification statement in accordance with section 148 of the PPSA.
15.6 If Goods that the Seller has a security interest in are processed, included, or dealt with in any way causing them to become accessions, processed or commingled Goods, its security interest will continue in the whole in which they are included. The Customer will not grant any other security interest or any lien in either the Goods or in the whole.
15.7 Where the Seller enforces its security interest over the Goods, the Customer authorises the Seller to at any time enter the Customer’s premises and properties to uplift such Goods that we have a security interest in.
15.8 The Customer unconditionally authorises the Seller to do all things and carry out any actions necessary on the Customer’s behalf to give effect to the security interest create by this clause 15.
16. Intellectual Property
16.1 In respect of Intellectual Property used in or arising from the production of the Goods:
(a) all pre-existing Intellectual Property the subject of an Intellectual Property right shall reside with the owner of that Intellectual Property as at the date of these Terms (whether that be the Seller or the Customer, on a case by case basis); and
(b) any new Intellectual Property will be owned by the party that creates it.
16.2 If the Customer supplies the Seller with any designs or specifications for which the Seller uses to produce and provide the Goods (Provided Intellectual Property), the Customer warrants that the use of that Provided Intellectual Property by the Seller will not infringe on any third party’s Intellectual Property rights and the Customer will indemnify the Seller against any loss, liability, cost and expense incurred in the event that any claim is made against the Seller by a third party on the basis that the Seller’s use of the Provided Intellectual Property infringes on that third party’s Intellectual Property rights.
17. Cancellation of these Terms
17.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Customer any sums paid in respect of the Price for those Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.1 The Customer will at all times treat as confidential all non-public information and material received from the Seller and will not publish, release, or disclose the same without our prior written consent.
18.2 For the purposes of these Terms, “Confidential Information” includes all information (whether in written, oral, electronic or other recorded form) disclosed by or on behalf of a party to the other party in connection with these Terms.
19.1 The Customer authorises the Seller to:
(a) collect, retain and use information about the Customer from any person for the purpose of assessing the Customer’s creditworthiness; and
(b) disclose information about the Customer:
(i) to any person who guarantees, provides insurance, or who provides any other credit support, in relation to the Customer’s obligations to the Seller;
(ii) to such persons as may be necessary or desirable to enable the Seller to exercise any power or enforce or attempt to enforce any of the Seller’s rights, remedies, and powers under these Terms; or
(iii) as required by law.
19.2 To the extent that any information about the Customer collected by the Seller under these Terms constitutes personal information (as that term is defined in the Privacy Act 2020), the Seller’s collection, use and storage of that personal information shall be in accordance with the Privacy Act 2020.
20. Limitation of liability
20.1 Except to the extent that the law prevents the Seller from excluding liability and subject to clause 20.2, the Seller will not be liable for any loss or damage or liability of any kind whatsoever (including indirect loss or lost profit or business) whether suffered or incurred by the Customer or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from Goods provided by the Seller to the Customer.
20.2 To the extent that the Seller is liable for any reason for any loss suffered or liability incurred by the Customer arising from any breach of these Terms, as a result of the Goods provided by the Seller to the Customer, or for any other reason, such liability is limited to the Price of the relevant Goods concerned.
20.3 Where a claim relates to defects in the Goods themselves, Fero will offer repair, replacement or credit for those Goods (at its sole discretion) in accordance with the procedure outlined in clause 10 applies.
21.1 Any notice under these Terms must be in writing but may be given, in person, posted, or sent by email to an appropriate representative of the relevant party (and where that party is a company, to that company’s director(s)).
22.1 The Customer may only assign, sell, or otherwise dispose of any right or obligation under these Terms if the Seller first provides consent in writing to do so.
23.1 These Terms are governed by and construed according to the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these Terms.
24. Survival of Terms
24.1 Clauses that by their nature are intend to survive the termination or expiration of these Terms will do so (including but not limited to clauses 5, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19, 20, 21, 23, this clause 24 and clause 25).
25.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable:
(a) that provision will be read down to the extent necessary to make it legal and enforceable; and
(b) the validity, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
25.2 The rule of construction (known as the “contra proferentem” rule) does not apply to these Terms.
25.3 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.
25.4 The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
25.5 The Seller 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 the Seller notifies the Customer of such change, except that no such change will apply to Orders placed by the customer prior to the date the change takes effect.