Fabco NZ Limited Terms of Trade In these Terms of Trade we have used we, us and our to refer to Fabco NZ Limited and you to refer to our customer. By agreeing to acquire goods from us you agree to these Terms to the exclusion of your terms (if any).
1.1 Unless we agree otherwise, delivery will be completed when the Goods are delivered to you.
1.2 We may charge you storage and transportation expenses if you fail or refuse to take or accept delivery or indicate to us that you will fail to do so.
1.3 We reserve the right to deliver Goods by instalments.
1.4 If we have given you a time for Delivery of the Goods (or any part of them), such time is approximate only and is not deemed to be of the essence.
2. Title and Risk
2.1 We will retain title to Goods we supply until they have been paid for in full and you have performed all your other obligations under these Terms.
2.2 Risk in all Goods passes to you when the Goods are Delivered. You will insure Goods for their full price.
3.1 All prices are plus GST and other taxes and duties, which will be paid by you.
3.2 Our prices are subject to change without notice.
3.3 Unless we agree otherwise in writing, the amount you will be charged will be the price as at the date of Delivery.
3.4 If we provide a quotation to you, it is based on information available to us at that time and we may charge you more than the amount quoted if our costs or the specifications change. Unless otherwise agreed in writing, prices are quoted exclusive of GST.
4. Indent Orders
4.1 When you place an indent order with us this means that we are sourcing the product (indent order goods) specifically for you. Accordingly, any indent orders once placed are noncancellable. You agree to receive and pay for all indent order goods as and when they arrive. This includes situations where the delivery of indent order goods has been delayed for reasons beyond our control.
4.2 In the event your account with us is in arrears, we reserves the right to either: (a) supply you with the indent order goods (and you unreservedly agree to accept and pay for the indent order goods); or (b) hold the goods for supply to you once the account arrears are back to an acceptable level (at which point you unreservedly agree to accept and pay for the indent order goods); or (c) decline to supply the indent order goods.
4.3 We reserve the right to decline an indent order from you if we have not received sufficient aggregate order volume to justify ordering the product from our suppliers.
5. Payment and Returns
5.1 You must pay for Goods on their Delivery unless we decide otherwise.
5.2 We may require you to pay a deposit, being an advanced payment for Goods supplied before those Goods are delivered.
5.3 We are under no obligation to supply Goods to you on credit. If we grant you credit, you agree to pay our invoices by the 20th of the month following the date of our invoice.
5.4 You agree to give any further securities as we may from time to time require, in the form required by us, and to comply with all of your obligations under those securities.
5.5 We may notify you at any time that we are going to stop supplying Goods to you on credit. This will be without prejudice to your obligation to pay amounts owing.
5.6 All payments must be made without set-off or deduction.
5.7 We may apportion payments to outstanding accounts as we see fit.
5.8 Faulty goods may be returned, provided you notify us of your intention to return the faulty goods and the reason they are faulty, within 7 days of having received the goods.
6.1 You will be in Default if: (a) you fail to pay an amount due under these Terms by the due date for payment; or (b) you commit a breach of any of your other obligations under these Terms, the Security, or the terms of any other contract you have entered into, or enter into in the future, with us; or (c) you become insolvent, are wound up, have a receiver appointed, enter into any composition or arrangement with your creditors, do any act which would render you liable to be placed in liquidation or have a receiver appointed over your property, commit an act of bankruptcy, cease to be of full legal capacity, or die; or (d) Goods that we have 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 your ability to meet your obligations to us.
6.2 If you are in Default then we may, at our option, do any one or more of the following: (a) charge you default interest at 2% per month on any late payments calculated on a daily basis from the due date until the date payment is received; (b) require you to remedy the default in the manner and within the period that we tell you; Terms of Trade - August 2022 (c) require you to pay to us all amounts you owe us immediately; (d) suspend or terminate your account with us; (e) enforce security interests created by these Terms; (f) exercise any rights that we have under these Terms or that are available to us at law.
6.3 We may suspend or terminate your account with us at any time in our sole discretion. If your account is terminated, you must immediately pay us any amount you owe us. Termination will not affect any of our rights that have arisen before termination.
7. Personal Property Securities Act 1999 (PPSA)
7.1 Clause 2.1 creates a security interest in Goods we supply to you.
7.2 You will not grant any other security interest or any lien over Goods that we have a security interest in.
7.3 At our request you will promptly sign any documents and do anything else required by us to ensure our security interest constitutes a first ranking perfected security interest in the Goods.
7.4 We may at any time enter your premises and properties to uplift Goods that we have a security interest in.
7.5 If Goods that we have a security interest in are processed, included, or dealt with in any way causing them to become accessions, processed or commingled Goods, our security interest will continue in the whole in which they are included. You will not grant any other security interest or any lien in either the Goods or in the whole.
7.6 You waive any rights you may have under sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, and 133 of the PPSA.
7.7 You waive your right to receive a copy of any verification statement (as that term is defined in the PPSA).
7.8 You will give us prior written notice of any proposed change of your name or address.
8.1 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. Other than as expressly provided for in these Terms, we exclude all such imposed 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.
8.2 Where you acquire goods from us for the purposes of a business: (a) the parties acknowledge and agree that:
(i) you are 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 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/misleading representations); and (b) you agree 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
9. Limitation of Liability
9.1 Except as expressly otherwise provided by clauses 8.1 or 8.2, we will not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you 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 us to you.
9.2 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms or for any other reason, such liability is limited to the amount of the price of the Goods concerned. If Goods are returned by you, we may, in our discretion, replace the Goods, or refund the price of those Goods to you, provided that: (a) you must return the Goods to us (to be sent to us within 5 working days after Delivery); and (b) you must supply the date and number of any invoice relating to the Goods; and (c) we must be given a reasonable opportunity to inspect the Goods.
10. Privacy of Information
10.1 You authorise us: (a) to collect, retain and use information about you from any person for the purpose of assessing your creditworthiness; (b) to disclose information about you: (i) to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us; (ii) to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies, and powers under these Terms.
11.1 Any notice may be given by phone, in person, posted, or sent by email to you or where you are a company, to any of your directors.
12.1 You will at all times treat as confidential all nonpublic information and material received from us and will not publish, release, or disclose the Terms of Trade - August 2022 same without our prior written consent. For clarity, confidential information includes prices.
13.1 You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies, and powers under these Terms.
14. Credit Information
14.1 You consent to us, or any financier or creditrating agency, making enquiries of and obtaining any information about your financial standing and credit worthiness.
15.1 These Terms are governed by and construed according to the laws of New Zealand. Subject to clause 16, you may take legal action against us only in a New Zealand court.
16.1 Any claim or dispute arising under these Terms will be determined by arbitration under the Arbitration Act 1996 if the parties are unable to resolve such dispute themselves within one month of the dispute arising. However, nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand courts.
17. Force Majeure
17.1 We will not be liable for any failure or delay in complying with any obligation imposed on us under these Terms if the failure or delay arises directly or indirectly from a cause reasonably beyond our control.
18.1 This clause 18 and clauses 2, 4, 6, 8, 9, 10, 11, 12, 13, 15, 16, 19, and 20 and any other provision which by its nature is intended to survive the termination or expiration of these Terms will survive the termination or expiration of these Terms or Delivery of the Goods.
19.1 These Terms supersede and cancel any earlier representations, warranties, understandings, and agreements (whether oral or written), and together with your Credit Application constitute the entire agreement between us and you relating to their subject.
19.2 You may only assign, sell, or otherwise dispose of any right or obligation under these Terms if we consent in writing first.
19.3 If you have entered into these Terms as the trustee of a trust and you have no right to or interest in any of the assets of the trust except in your capability as trustee of the trust, your liability will be limited to the value of the assets of the trust which now or in the future are (or, but for your wilful neglect or default, would be) in the hands of the trustees for the time being of the trust. This clause does not limit any liability you have to us as a personal guarantor.
19.4 No failure or delay by us to exercise (in whole or in part) any right, power or remedy under these Terms will operate as a waiver of that right, power or remedy.
19.5 We may change these Terms at any time. Any change applies from when it is published on our website https://www.fabco.co.nz.
20.1 In these Terms unless the context otherwise requires: Delivery means the delivery of the Goods to your premises. If you indicate to us that you will fail or refuse to take or accept delivery, then the Goods are deemed to have been delivered when we are willing to deliver them. Default has the meaning set out in clause 6. Goods includes any associated services that we supply. Security means all existing and future security held by us that secures your obligations under these Terms.
20.2 The rule of construction known as the contra proferentem rule does not apply to these Terms.
20.3 Words referring to the singular include the plural and vice versa.
20.4 Any reference to a party includes: (a) that party's executors, administrators, or permitted assigns; or (b) if a company, limited partnership, or any other body corporate, its successors or permitted assigns or both.
20.5 Clause headings are for reference only.
20.6 References to clauses are references to clauses of these Terms.
20.7 References to money will be New Zealand currency, unless specified otherwise.
20.8 Expressions referring to writing will be construed as including references to words printed, typewritten, or otherwise visibly represented, copied, or reproduced (including by fax or email).
20.9 References to statutory provisions will be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time.