GENERAL TERMS AND CONDITIONS OF TRADE
1.1 The following terms and conditions apply to all orders placed with and goods supplied by fel. Group Limited (hereinafter called fel. Group).
1.2 Notwithstanding clause 1.1, fel. Group may by written notice to the Customer alter or replace these terms and conditions. All orders placed subsequently by the Customer shall be upon the altered or replaced terms and conditions.
2. Prices and Orders
2.1 All prices are exclusive of GST and insurance/freight/handling charges unless otherwise stated. The Customer shall pay GST and insurance/freight/handling charges in addition to the price quoted.
2.2 The prices quoted may be revised by fel. Group subsequent to accepting an order in the event of any occurrence affecting delivery caused by War, Government action, variation in Customs duties, increased shipping charges and any other matter beyond control of fel. Group. In that event the Customer shall have the right to withdraw its order.
2.3 All backorders at the time of any price change will reflect the new price.
2.4 No order shall be binding on fel. Group until accepted in writing by fel. Group or a person authorised on its behalf.
3.1 Payment is due in accordance with the terms set out in the Customer’s account application or if no such terms are stipulated by the 20th day of the month following the date of purchase.
Payment is to be made without deduction or set off in cash, by cheque or direct credit into fel. Group’s bank account.
3.2 Where any payment is not made on the due date, then without prejudice to any other rights or remedies available to fel. Group under these terms and conditions or at law or in equity or otherwise fel. Group may:
3.2.1 Charge interest on all overdue accounts at the rate of 2% per month calculated on a daily basis from the date on which payment was due until payment is made;
3.2.2 Withhold deliveries or cancel undelivered orders or portions of such orders, retain as liquidated damages any monies paid by the Customer and sue the Customer for damages;
3.2.3 Cancel any other order or contract or arrangement between fel. Group and the Customer or suspend the performances of such order, contract or arrangement pending payment without being liable to the Customer for any losses of any kind that it might suffer.
3.3 The Customer shall upon demand reimburse fel. Group for all costs (including legal costs on a solicitor/client basis), expenses or other sums incurred by fel. Group in the recovery of the monies due and/or the goods, which sum shall also carry interest at the rate specified in clause 3.2.1 if unpaid within one calendar month of demand having been made.
3.4 fel. Group shall be entitled to apply or appropriate any payments to any account of the Customer. Should the Customer have a number of accounts, fel. Group may combine any accounts and offset any amount between accounts.
3.5 fel. Group reserves the right to impose a credit limit at any time, which may be altered or withdrawn at fel. Group’s discretion with effect from the date that fel. Group notifies the Customer of such change.
3.6 If at any time it deems the credit of the Customer to be unsatisfactory fel. Group may require security for payment and may suspend performance of its obligations under the contract until the provision of sufficient security. All costs and expenses of, or incurred by, fel. Group as a result of such suspension and any recommencement shall be payable by the Customer upon demand.
4. Delivery and Returns
4.1 The time stated for delivery is an estimate only and shall not be of the essence to the contract. Unless fel. Group has agreed to deliver the goods to the Customer’s premises, delivery obligations shall be limited to making the goods available at fel. Group premises. Where fel. Group has agreed to deliver the goods to the Customer’s premises, the Customer shall ensure that the carriers will have uninterrupted access to the Customer’s premises to enable the goods to be delivered by the carriers. Where the goods are not collected by the Customer within seven days of notification that the goods are available for collection or, where the goods are to be delivered to the Customer’s premises and access is not provided to the carriers the Customer shall pay fel. Group upon demand such amount calculated by fel. Group as will compensate fel. Group and the carriers for wasted time and expenditure and any storage charges.
4.2 Where fel. Group has agreed to deliver the goods to the Customer’s premises the Customer will pay for transportation costs unless otherwise agreed between the parties in writing.
4.3 The Customer will promptly check for correctness of deliveries made by fel. Group. No liability will be accepted for any shortages, breakages, or defective goods unless fel. Group is notified in writing within 24 hours of delivery. Returns will only be accepted within one month from the date of invoice and must be accompanied by the invoice.
4.4 Orders may not be cancelled, and goods returned for credit except in accordance with clause 4.3.
5. Risk and Ownership
5.1 Risk in any goods supplied by fel. Group to the Customer shall pass when the goods are delivered to the customer or into custody on the Customer’s behalf and it shall be the Customer’s obligation to insure the goods from that time.
5.2 Title to and ownership of the goods shall not pass to the Customer until all monies payable to fel. Group (whether for the goods or otherwise) have been paid by the Customer in full. Until title in the goods passes to the Customer, the Customer must:
5.2.1 Keep the goods in good condition;
5.2.2 Keep the goods fully insured to their full replacement values against all risks;
5.2.3 Not encumber the goods in any way;
5.2.4 Hold and keep the goods separately from other property in the possession of the Customer and in a manner which enables the goods to be easily identifiable as goods supplied by fel. Group.
5.3 If the Customer resells the goods or any of them before payment is made the Customer shall hold the proceeds of resale of the goods or any of them in trust for fel. Group and account to fel. Group for all monies owed by the Customer to fel. Group. If the Customer resells the goods or any of them so as to create a debt owed to the Customer, the Customer hereby assigns all legal and equitable title to that debt to fel. Group and the Customer hereby irrevocably appoints fel. Group as its attorney with all powers permitted by law for a purpose of effecting any such assignments and recovery of any such debt in the name of the Customer for the benefit of fel. Group.
5.4 fel. Group shall be entitled to repossess all goods which it claims belongs to it at any time without notice and for such purpose it shall be lawful for fel. Group and/or its agent to enter any premises where such goods are or are believed to be and to remove such goods. The Customer indemnifies and agrees to hold harmless fel. Group against any damage howsoever caused in relation to such entry and removal including consequential loss or damage to any third party or to the Customer.
6. Personal Property Securities Act 1999
6.1 The Customer acknowledges that fel. Group holds a “security interest” in the goods and any proceeds of the sale of the goods pursuant to Section 17 of the Personal Property Securities Act 1999 (“the PPSA”) and that fel. Group may register a financing statement in respect of the goods and any sale proceeds together with any other goods and any sale proceeds of those goods
fel. Group Limited – Terms and Conditions of Trade (Version 06-09-2016) Page 3 of 3
in accordance with the provisions of the PPSA.
6.2 The Customer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by fel. Group under clause 6.1.
6.3 Customer acknowledgements: Customer: (a) agrees that if, at any relevant time, fel. Group does not at that time have priority over all other secured parties in respect of any part of the Goods, then Customer and fel. Group will, for the purposes of section 109(1) of the PPSA, be deemed, in accordance with the entitlement to do so under section 107(1) of the PPSA, to have contracted out of that section; and (b) agrees that nothing in section 114(1)(a), 133 and 134 of the PPSA shall apply to any Contract, or the security under any Contract, and waives Customer’s rights under sections 121, 125, 129 and 131 of the PPSA.
6.4 Allocation of payments: fel. Group may allocate amounts received from Customer in any manner fel. Group determines, including any manner required to preserve any purchase money security interest it has in any Goods.
7. Branded Material
7.1 fel. Group may from time to time loan marketing and promotional materials accessories and products bearing brands exclusively marketed through fel. Group to the customer. The Customer shall use such materials and products only to serve or promote the product associated with that brand. If any such materials or products require replacement or renewal of parts during the time it is in possession of the Customer, then the Customer will pay the costs of the renewed or replaced parts whether or not the need for renewal or replacement arises during the course of normal use and general wear and tear or as a result of misuse by the Customer. fel. Group may demand return of any such materials and products at any time. The Customer will pay for any materials and products not returned to fel. Group
8. Warranties and Liabilities
8.1 Save for any warranties and conditions conferred in writing by fel. Group on the Customer in relation to particular goods sold by fel. Group to the Customer, fel. Group makes no representation and gives no assurance, condition or warranty of any kind to the Customer (including any assurance, condition or warranty implied by law to the extent that the assurance, condition or warranty can be excluded) in relation to the goods and accepts no liability for any assurance, condition, warranty, representation, statement or term not expressly set out in these terms and conditions. The Customer specifically acknowledges that where it is requiring the goods for business purposes the provisions of the Consumer Guarantees Act 1993 are excluded.
8.2 fel. Group will replace with reasonable despatch any defective goods subject to compliance by the Customer with the provisions of clause 4.3.
8.3 The benefit of any warranties and conditions conferred by fel. Group on the Customer are personal to the Customer and are not assignable.
8.4 Subject to the provisions of the Fair Trading Act 1986, fel. Group shall not be liable to the Customer or any other person for any indirect or consequential loss or damage of any kind arising out of defective goods or any breach by fel. Group of its warranties or conditions or obligations under these terms and conditions or negligence or otherwise and regardless of the legal basis of any claim, fel. Group’s maximum liability to the Customer under any circumstances is limited to a sum not exceeding the invoiced value of the goods.
9.1 As Where the Customer is on-supplying goods supplied by fel. Group pursuant to a contract with any third party, fel. Group does not accept any payment retentions terms or agreements the Customer may have made with that third party and payment for goods supplied shall always be made pursuant to these terms and conditions.
10.1 The Customer authorises:
10.1.1 fel. Group to obtain any information concerning the Customer’s affairs that fel. Group deems necessary.
10.1.2 Any reputable credit agency and any other person to provide fel. Group with any information which fel. Group regards as relevant to the Customer’s credit activities and credit worthiness.
10.1.3 fel. Group to provide to any credit reporting agency and any other person any information about the Customer’s credit activities and credit worthiness.
10.1.4 fel. Group to utilise any information provided by the Customer for the purpose of marketing its goods or services.
10.2 To the extent required under the Privacy Act 1993 the Customer is entitled to have access to and to request correction of personal information concerning the Customer which has been collected by fel. Group.
11. Force Majeure
11.1 fel. Group shall not be responsible to the Customer for failure to perform any of its obligations due to causes beyond its control including work stoppages, fires, civil disobedience, riots, rebellions, acts of God and similar occurrences. In such circumstances fel. Group shall have the right at its discretion to delay the performance of its obligations until such causes