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Terms & Conditions

FIASCO LTD TERMS OF TRADE

  1. DEFINITIONS
    1. Company means Fiasco Limited.
    2. Buyer refers to the party named below.
    3. Goods means any goods purchased by the Buyer from the Company at any time, including co-mingled goods.
    4. Services means services, work and labour provided by the Company to the Buyer at any time.
  2. PAYMENT
    1. The buyer will pay for Goods or provision of Services on or before seven days of being invoiced unless the company, unless the Company requires a cash-up-front payment or otherwise agreed in writing. All stated and quoted prices exclude GST.
    2. The Buyer may not deduct, set-off or withhold any sum due to the Company, even if a dispute exists.
    3. If the Buyer does not pay any sum by the date it is due, then without prejudice to the Company's other remedies, the Company may charge the Buyer interest on the unpaid overdue balance at the rate of 5% per annum above the current Fiasco (ANZ) unsecured commercial overdraft rate from the date payment was due until the date of payment.
  3. OWNERSHIP OF GOODS AND RISK
    1. Ownership of any Goods supplied by the Company will not pass until all sums owing by the Buyer for all Goods and Services have been received by the Company, even if the Goods are changed in character or become part of another product.
    2. Until ownership passes to the Buyer the Buyer will hold the Goods as bailee for the Company. The Buyer will clearly identify and store the Goods in a manner that makes it clear that the Goods are the property of the Company.
    3. The Buyer irrevocably authorises the Company and its agents to enter on and into any premises occupied by the Buyer to search for and remove any Goods supplied by the Company of which the Company retains ownership. The Company will not be required to give any notice to enter on or into the Buyer's premises. If the Goods are attached to or incorporated in any other goods, the Company may, where practical, disconnect or sever the Goods and remove them. The Company will not be liable to the Buyer or any person claiming through the Buyer for exercising its rights under this clause.
    4. Risk in the Goods will pass to the Buyer upon pickup of the Goods from the Company's premises or (in the case of delivery) upon delivery to the road entrance of the Buyer's nominated site address. All delivery dates are estimates only, and the Company will not be liable to the Buyer for any non-delivery or delays in delivery, nor will the Buyer have any rights of cancellation or compensation.
  4. INTELLECTUAL PROPERTY
    1. The Buyer acknowledges that the Company (and/or the Company's nominees) solely and exclusively owns all intellectual property in relation to the Goods and Services, including any know-how, designs or works that enhance or modify the Goods or Services in any way, and including all copyrights, patents, trade secrets, trademarks and other proprietary rights attaching to the Goods or Services. The Buyer:
      1. will sign any documentation considered reasonably necessary by the Company to perfect the Company's ownership of its intellectual property;
      2. will co-operate fully and as the Company may require in obtaining, defending or enforcing its intellectual property;
      3. will not dispute the Company's ownership of the intellectual property;
      4. will not hold itself out as the owner of any of the Company's intellectual property in the Goods or Services; and
      5. will not market, sell, lease, loan or otherwise distribute, transfer, assign, duplicate, display or disclose the Company's intellectual property in the Goods or Services.
  5. SECURITY INTEREST
    1. The Buyer grants to the Company a first-ranking security interest in all present and after acquired Goods, and goods which the Company has applied Services to or commingled any of the Company's products, and all proceeds of the Goods. The Buyer will do all things required to allow the Company to perfect this interest.
    2. On the request of the Company, the Buyer will promptly execute any document and do anything else required by the Company to ensure that the security interest created under this agreement constitutes a first ranking perfected security interest over the Goods and their proceeds including (without limitation) providing any information the Company reasonably required to complete a financing statement or a financing change statement. The Buyer waives any right to receive a copy of the verification statement under the Personal Property Securities Act 1999 and the parties expressly contract out of the Buyer's rights under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of that Act.
  6. COSTS OF ENFORCEMENT AND LIABILITY
    1. The Buyer will be liable for, and will indemnify the Company against, all costs incurred by the Company in enforcing its rights under these terms of trade, and any losses suffered, and costs incurred by the Company (whether directly or indirectly) as a result of the Buyer breaching any of these terms. Monies due under this indemnity are payable upon demand in writing and will bear interest under clause 2.3.
    2. Any warranties (other than any express warranty that may be given by the Company to the Buyer in writing) in relation to the Goods and Services are expressly excluded to the fullest extent permitted by law.
    3. In the event any Goods supplied by the Company are found to be defective or any Services provided by the Company are found to have not been carried out correctly, the maximum liability of the Company whether in contract, tort or otherwise will be lesser of:
      1. the cost of the Goods or Services; or
      2. the cost of remedying the defective Goods and Services; or
      3. the actual loss or damage suffered by the Buyer.
    4. The Company will not be liable for any damage or consequential loss that arises to the Buyer or any other party as a result of the Company's breach of this contract or any negligence, nor for any delay or failure to perform its obligations arising from any act of God, or if the cause of the delay or failure is beyond its control.
  7. MISCELLANEOUS
    1. These terms are governed by the laws of New Zealand.
    2. If the Buyer is acquiring or holding itself out as acquiring the Goods and Services for a business purpose, the Consumer Guarantees Act 1993 and the Sale of Goods Act 1908 will not apply to the fullest extent permitted by law.
    3. The placement of an order with the Company shall be deemed to be acceptance of these terms of trade.
    4. If any part of these terms of trade are deemed to be void, illegal, or unenforceable, that part will be severed, and will not affect the validity of the rest of the terms of trade.
    5. The Company is authorised to obtain a credit check of the Buyer.
    6. Subject to clause 2.2, if any dispute arises as to any order, the parties must first attempt to resolve that dispute through good faith negotiations, or (at the election of either party) mediation or arbitration. Arbitration under the Arbitration Act 1996 must be pursued prior to any court proceedings being commenced.





 

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