1. Definitions
1.1 In these Conditions, unless the context requires otherwise:
(a) Buyer means the person who buys or agrees to buy the Products from Fahey.
(b) Conditions means these terms and conditions of sale and any special terms and conditions agreed in writing by Fahey.
(c) Delivery Date means the date specified by Fahey when the Products are to be delivered.
(d) Product means the products which the Buyer agrees to buy from Fahey.
(e) Order means a request (either verbal or in writing) by the Buyer to purchase Products.
(f) Price means the price for the Products, excluding carriage, packing, insurance and GST.
(g) Fahey means Fahey Fence Hire Auckland Limited.
2. Conditions Applicable
2.1 These Conditions shall apply to all Orders, to the exclusion of all other terms and conditions, including any terms and conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document. Separate terms and conditions (available on Fahey’s website www.fahey.net.nz/terms-and-conditions/) are applicable to the hire of temporary fencing.
2.2 All Orders shall be deemed to be an offer by the Buyer to purchase Products and each Order hall constitute a separate contract governed by these Conditions.
2.3 Acceptance of delivery of the Products shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by Fahey.
3. Price and payment
3.1 The Price shall be the price as stipulated in Fahey’s published price list, current at the Date of Delivery.
3.2 Fahey may require payment of a deposit to confirm an Order. Fahey shall be under no obligation to deliver the Products until the deposit is paid. All deposits are non-refundable.
3.3 Unless otherwise agreed in writing, Fahey shall not be bound to deliver the Products until the Buyer has paid for them (plus GST and any additional charges) and time of payment shall be of the essence.
3.4 The Buyer may not withhold payment of any invoice or other amount by reason of any right of set off or counterclaim which the Buyer may have, or allege to have, or for any reason whatever.
4. Termination of supply
4.1 Where:
(a) the Buyer fails to make payment of the Price; or
(b) commits any other breach of these Conditions;
(c) any distress or execution shall be levied upon any of the Buyer’s property;
(d) the Buyer offers to make any arrangement with its creditors;
(e) any bankruptcy petition is presented against the Buyer;
(f) the Buyer is unable to pay its debts as they fall due;
(g) if being a Limited Company any resolution or petition to wind up the Buyer (other than for the purposes of amalgamation or reconstruction without insolvency) is passed or presented;
(h) a receiver, administrator, administrative receiver, or manager is appointed over the whole or any part of the Buyer’s business or assets;
(i) the Buyer shall suffer any similar proceedings under foreign law;
(j) then all sums outstanding in respect of any Orders shall become payable immediately.
4.2 In addition, Fahey may, in its absolute discretion, and without prejudice to any other rights it may have:
(a) Suspend all future supply of Products to the Buyer; and/or
(b) Terminate all Orders without liability on its part; and/or
(c) Charge interest at the rate of 2.5% per month on all sums outstanding;
(d) Exercise any of its rights pursuant to clause 8.
4.3 Fahey shall be entitled to a general lien on all Products of the Buyer in Fahey’s possession (including Products of the Buyer which have been paid for) for the unpaid price of all Products sold to the Buyer by Fahey under any Order.
5. Delivery of the Products
5.1 Delivery of the Products shall be made to the Buyer’s address on the Delivery Date. The Products may be delivered in advance of the Delivery Date upon the giving of reasonable notice to the Buyer. The Buyer shall make all arrangements to take delivery of the Products whenever they are tendered for delivery.
5.2 Fahey shall not be liable to the Buyer for late delivery or short delivery of the Products.
5.3 The Buyer shall be deemed with acceptance of the Products 48 hours after delivery to the Buyer.
5.4 After acceptance, the Buyer shall not be entitled to reject the Products which are not in accordance with the Order.
5.5 Where the Buyer rejects any Products, then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such Products or a failure by Fahey to supply Products which confirm with the Order.
5.6 If the Buyer properly rejects any of the Products which are not in accordance with an Order, the Buyer shall nonetheless pay the full Price, unless the Buyer promptly gives notice of rejection to Fahey and, at the Buyer’s cost, returns such Products to Fahey before the date when payment of the Price is due.
5.7 When the Buyer accepts, or has been deemed to have accepted any Products, then Fahey shall have no liability whatever to the Buyer in respect of those Products.
5.8 Fahey may deliver the Products by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with these Conditions (or Fahey may raise a separate invoice and require payment for each instalment);
5.9 The failure or refusal of the Buyer to take delivery or to pay for any one or more of the said instalments of the Products on the due dates shall entitle Fahey (at the sole option of Fahey):
(a) Without notice to suspend further deliveries of the Products pending payment by the Buyer; and/or
(b) To treat the Order as repudiated by the Buyer.
6. Guarantees
6.1 Where the Products are of a kind commonly acquired for personal, domestic or household use or consumption and the Consumer Guarantees Act 1993 applies to an Order;
(a) If any of the Products fail to comply with any guarantee in the Consumer Guarantees Act, Fahey will repair and replace those Products.
(b) Without excluding Fahey’s obligation under the Consumer Guarantees Act 1993, the Buyer acknowledges that Fahey does not provide any express guarantees (as defined in that Act) other than those expressly confirmed by Fahey in writing.
6.2 If the Products are acquired by the Buyer for a business purpose, the Buyer agrees that the Consumer Guarantees Act 1993 does not apply.
6.3 The following terms apply where the Consumer Guarantees Act 1993 does not apply to an Order or where the following terms are not inconsistent with the Consumer Guarantees Act 1993:
(a) Defective Products or Products which do not comply with an Order may, at Fahey’s discretion, be repaired or replaced, or the price refunded.
(b) Any right which the Buyer may have to reject non-confirming or defective Products will only be effective if:
(i) The Buyer notifies Fahey in writing within 48 hours following delivery and Fahey is given the opportunity to inspect the Products, and the Products are returned un-used, re-saleable and/or in the condition the Buyer received them.
(ii) Fahey will not repair or replace or refund the Price for so long as the Buyer is in default in relation to any amount owing.
(c) Fahey accepts no liability for any claim by the Buyer, or any other person including, without limitation, any claim relating to or arising from:
(i) Any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for purpose, tolerance to any conditions, merchant ability or otherwise, whether expressed or implied by law, trade, custom or otherwise, or:
(ii) Any representation, warranties, conditions or agreements made by any agent or representative which are not expressed confirmed by Fahey in writing, or any services forming part of the supply of the Products which have been performed by any third party, and the Buyer agrees to indemnify Fahey against any such claim.
(d) Nothing in these terms is intended to have the affect of contracting out of the provisions of the Consumer Guarantees Act 1993, except to the extent permitted by that Act and these terms are to be modified to the extent necessary to give effect to that intention.
7. Exclusion of Liability
7.1 Fahey shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by Fahey of these Conditions.
7.2 In the event of any breach of these Conditions by Fahey, the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of Fahey exceed the Price.
8. Retention of Title and Personal Property Securities Act 1999 (PPSA)
8.1 Products shall be at the Buyer’s risk from delivery.
8.2 Despite delivery having been made, property in the Products shall not pass from Fahey until:
(a) The Buyer has paid the Price plus GST in full; and
(b) No other sums whatever shall be due from the Buyer to the Fahey.
8.3 Where a security interest is created pursuant to the PPSA the Buyer agrees that the security interest in the Products extends to the Proceeds (as defined in s16 PPSA) and acknowledges that the security interest will continue until Fahey gives the Buyer a final release.
8.4 Fahey may at its sole discretion and in such manner as it determines allocate payments made by the Buyer to outstanding amounts due in relation to any Products supplied by it.
8.5 Until property passes, the Buyer agrees that it:
(a) will keep the Products insured to their full insurable value against loss or damage in Fahey’s name as unpaid vendor;
(b) hold the Products as bailee for, and in a fiduciary relationship with, Fahey;
(c) will keep the Products separate and readily identifiable while the Products are in its possession or control;
(d) will not do or omit to do, or allow to be done, anything which could adversely affect the Products or the security interest.
8.6 If the Buyer defaults under these Conditions or under any other payment obligation to Fahey :
(a) Each security interest created in favour of Fahey will become immediately enforceable.
(b) Fahey may, at any time, by notice to the Buyer declare all or any part of the moneys owing to it to be due and payable immediately, upon demand or at a later date as it may specify.
(c) Fahey may:
(i) Enter the Buyer’s premises where the Products are stored to take possession of and either sell or retain the Products;
(ii) Pay any expenses incurred in the exercise of any such powers out of the revenue from, or proceeds of realisation of, the Products.
(iii) Appoint a receiver in respect of any Products (without the Buyer’s consent) and any receiver is authorised to do anything referred to in these Conditions and otherwise to exercise all rights and powers conferred on a receiver by law.
8.7 Fahey will not be liable for any damage caused to the Buyer or the Buyer’s premises in exercising its rights under this clause.
8.8 The Buyer shall pay all of Fahey’s costs, losses and other liabilities (including legal expenses on a solicitor-client basis) incurred by it in connection with the exercise, or attempted exercise, of any right arising under this clause or the PPSA.
8.9 Nothing expressed in the other provisions of this clause limits or otherwise adversely affects Fahey’s rights under the PPSA.
8.10 The Buyer waives its rights under sections 114(1)(a); 116; 120(2); 121; 125; 129; 131; 132; 133 and 134 of the PPSA and to receive a copy of the Verification Statement or a Financing Change Statement relating to the Security Interest.
8.11 The Buyer must give written notice to Fahey immediately in writing upon any change of name or any change in management or control. In the event of any change in management or control the Buyer agrees to make further credit support available upon being requested to do so.
8.12 If requested by Fahey, the Buyer must promptly do all things (including signing any document) and provide all information necessary to enable Fahey to perfect and maintain the perfection of any and each security interest granted to Fahey by the Buyer (including by registration of a Financing Statement).
9. Force majeure
9.1 Neither party shall be liable for any default due to any act of God or civil disturbance, malicious damage, strike, lock-out, industrial action, fire, flood, drought, extreme weather conditions compliant with any law or governmental order, rule, regulation, direction or any other circumstance beyond the reasonable control of either party;
9.2 Each party shall give notice forthwith to the other upon becoming aware of a force majeure event, the notice to specify details of the circumstances giving rise to the force majeure event.
10. Notices
10.1 Any notice under, or in connection with these Conditions, shall be in writing and shall be served by first class post or by hand on a party, sent by recorded delivery or email at or to the trading address of the party last known.
10.2 In the absence of evidence of earlier receipt, any notice shall be deemed to be duly served;
(a) If delivered personally when left at the address;
(b) If so by recorded delivery three days after posting; and
(c) If sent by email, when received.
10.3
11. Privacy
11.1 Fahey may request and collect personal information about the Buyer to evaluate whether to agree to accept any Order. The failure to provide the information requested by Fahey may result in the Order being declined or an Order subsequently being terminated by Fahey.
11.2 The Buyer has rights of access to personal information so collected, subject to the provisions of the Privacy Act 1993.
11.3 The Buyer agrees that its personal information may be used by Fahey to advise the Buyer of Fahey’s other services.
11.4 The Buyer authorises the disclosure of personal information held by any other party to Fahey regarding any previous sale agreements entered into by the Buyer and/or any information in relation to the financial position of the Buyer.
11.5 The Buyer agrees that Fahey may release to other parties information regarding any Order in order to enforce these Conditions.
12. Law of Contract
12.1 This contract shall be governed by the laws of New Zealand and the parties irrevocably accept the jurisdiction of the New Zealand Courts.
