||APPLICATION AND VARIATION OF TERMS OF TRADE
||These Terms of Trade apply to the supply of all goods and services
("the Goods") by Farco Technologies Limited ("Farco")
to the customer ("the Customer"). Changes to these Terms
of Trade will be notified to the Customer by Farco in writing.
||QUOTATIONS AND ORDERS
||The Customer may request a quote ("the Quotation") from
Farco setting out the price and quantity of the Goods to be supplied.
If the Quotation is acceptable to the Customer, the Customer may place
an order as required in clause 2.2. If the order is not placed with
Farco within 30 days of the date of the Quotation, the Quotation is
subject to further written confirmation by Farco in its absolute discretion.
Prices quoted are for the quantity requested. Farco may in its absolute
discretion vary the price if the order quantity is different from
that contained in the Quotation.
||The Customer will complete a purchase order and send the purchase
order to Farco along with a signed copy of these Terms of Trade or
some other form of acknowledgement by the Customer confirming that
the Customer is bound by the Terms of Trade. Farco will send the Customer
written notice confirming the order whereupon a binding contract will
arise between Farco and the Customer. Farco reserves the right to
supply the whole or only part of the order.
||Farco will not be bound by any conditions included in the Customer's
order unless it accepts them in writing. If Farco does not accept
any conditions included in the Customer's order and the Customer accepts
delivery of goods delivered under that order, the acceptance of delivery
by the Customer will be deemed to be acceptance by the Customer of
these Terms of Trade notwithstanding anything that may be stated to
the contrary in the Customer's inquiries or on the Customer's orders.
||Farco has the right not to accept any orders or to cancel any orders,
which it has accepted if due to circumstances beyond Farco's control,
filling the order is impracticable or uneconomic.
||These Terms of Trade will prevail over and exclude all Acts or legal
obligations to the extent permitted by law.
||For a New Zealand Customer, unless otherwise agreed in writing,
the price for the Goods is stated in New Zealand dollars and will
be the current price charged by Farco at the date of delivery. For
the purposes of these Terms of Trade, a New Zealand Customer is one
whose delivery address is in New Zealand.
|| For an Overseas Customer, unless otherwise agreed in writing, the
price for the Goods is stated in United States dollars and will be
the current price charged by Farco at the date of delivery. For the
purposes of these Terms of Trade, an Overseas Customer is one whose
delivery address is outside New Zealand.
||Unless otherwise agreed prices are exclusive of Goods and Services
Tax, any other taxes, duties, charges and delivery and packaging costs.
Goods and Services Tax, and any other applicable taxes, duties, charges
and costs will be payable by the Customer in addition to the price.
||The price payable by an Overseas Customer may be altered at any
time before delivery due to exchange rate fluctuations.
||An invoice will be issued and sent with the Goods to a New Zealand
Customer. A New Zealand Customer must pay for the Goods by no later
than 2 weeks after delivery unless otherwise agreed in writing.
||An Overseas Customer must pay for the Goods prior to delivery. Payment
is to be made by direct credit to the bank account nominated by Farco
unless some other form of payment is agreed in writing.
||Failure to pay for the Goods by the due date may result in further
deliveries being stopped until the overdue payments have been made.
Interest on overdue accounts may be charged at a rate equal to 5%
per annum over Farco's bank overdraft rate on any debt outstanding
not paid by the due date.
||Any costs Farco incur in the collection of payment of any invoice
may be recovered from the Customer.
||The Customer may not set off against the price payable for the Goods,
any claims which the Customer may have against Farco.
||Farco may accept and apply payments from the Customer in respect
of any indebtedness and Farco will not be bound by any conditions
or qualifications attaching to such payments.
||SECURITY INTEREST, RISK AND OWNERSHIP
||The Customer grants Farco a security interest in the Goods as security
for all amounts owing by the Customer to Farco and the performance
of the Customer's obligations under these Terms of Trade.
||The Customer shall ensure that it is always able to identify:
||(a) the Goods from any other goods that may be in the Customer's
(b) the particular Goods to which any invoice relates.
||Title to any particular Goods shall remain in Farco until there
are no longer any amounts owing to Farco for those Goods.
||Until title to any particular Goods passes to the Customer, the
(a) hold those Goods as Farco's bailee;
(b) return those Goods to Farco on request; and
(c) hold any cash proceeds of those Goods on trust for Farco in a
||Even though title to any particular Goods remains in Farco, the
Customer may sell those Goods on the Customer's own account provided
(a) any such sale is conducted at arms length and is for the full
market value of those Goods; and
(b) Farco has not requested the return of those Goods.
||The Goods shall be at the Customer's risk from delivery (whether
to the Customer or another person on the Customer's behalf) and the
Customer shall insure the Goods for their full replacement value.
||If the Customer fails to comply with any term of these Terms of
Trade or any other agreement with Farco, Farco or its agent may exercise
any and all remedies afforded to a secured party by Part 9 of the
Personal Property Securities Act 1999 ("PPSA") and enter
any building or premises owned, occupied, or used by the Customer,
to search for and re-take possession of the Goods.
||The parties agree that sections 114(1)(a), 117(1)(c), 133 and 134
of the PPSA shall not apply on the enforcement by Farco of any security
interest created or provided for by these Terms of Trade. The Customer
waives any rights the Customer may have under sections 116, 119, 120(2),
121, 125, 126, 127, 129 and 131 of the PPSA on such enforcement.
||The Customer acknowledges receipt of a copy of these Terms of Trade
and waives any right to receive from Farco a copy of any financing
statement, financing change statement or verification statement that
is registered, issued, or received at any time in relation to these
Terms of Trade.
||The Customer shall immediately notify Farco of any change of name.
||Unless the context otherwise requires terms and expressions in this
clause 5 that are defined in the PPSA shall have the same meaning
in this clause 5 as in the PPSA and references to the Goods include
references to any one of them.
||Delivery will be completed upon receipt of the Goods by a carrier
for delivery to the Customer (where a carrier is used) or upon either
receipt of the Goods by or on behalf of the Customer where a carrier
is not used.
||Farco will deliver the Goods to the place nominated by the Customer.
The cost of delivering the Goods to the nominated delivery point will
be borne by the Customer and will be shown separately on the relevant
||If the Customer specifies a delivery date, Farco will use its reasonable
endeavours to try and deliver the Goods to the Customer by that date
but Farco will not be responsible in any way to the Customer for delivery
delays or non-delivery. Farco will not be liable for any damage to
the Goods in transit.
||CONSUMER GUARANTEES ACT
||Nothing in these Terms of Trade shall restrict, negate, modify or
limit the Customer's rights under the Consumer Guarantees Act 1993
(a) The Goods are of a kind ordinarily acquired for personal, domestic,
or household use or consumption; and
(b) The Customer is not acquiring the Goods for a business purpose.
||EXCLUSIONS AND LIMITATIONS OF LIABILITY
||No warranty is given and Farco will not be liable:
(a) for alterations or repairs to the Goods not performed by Farco;
(b) for damage caused by unusual or non-recommended use;
(c) for loss caused by any factors beyond Farco's control;
(d) whether in contract or tort for any special, consequential or
economic loss or damage or loss of profits suffered by the Customer
or any other person resulting from any act or omission of Farco.
||Farco's total liability for defective or damaged goods is limited
at Farco's option to either:
(a) replacing the defective or damaged goods; or
(b) refunding the price of the defective or damaged goods.
||Subject to clause 7.1 of these Terms of Trade Farco excludes and
contracts out of all statutory conditions, guarantees and warranties
expressed or implied by the law to the fullest extent permitted by
||COMPLIANCE WITH LAW
||The Customer shall ensure that the Goods are used only for lawful
purposes and in accordance with any applicable laws.
||The Customer agrees to indemnify Farco in respect of all damages,
losses, costs, and expenses (including legal costs) that Farco may
incur as a result of the Customer's breach or alleged breach of clause
||Farco will at its option either replace defective goods or give
a credit or refund for the Goods as long as the Customer's claim has
specifically identified the Goods and the defect and the Customer
notifies Farco of the defect within 10 days of taking delivery and
returns the defective goods to Farco in their delivered state.
||Any costs incurred in returning the goods, including Farco's reasonable
handling fees and charges are to be paid by the Customer. The Customer
may not withhold any payment due to Farco in respect of any other
goods pending the resolution of a claim for a product defect.
||Goods which do not match the relevant purchase order or invoice
may be returned to Farco provided that the Customer advises Farco
of the particular error within 10 days of receiving the Goods and
the Goods are returned, in the same condition as they were delivered,
within 10 days of the Customer taking delivery of the Goods.
||The Customer may not cancel any order or part of it without Farco's
written consent and as a condition of giving such consent, Farco may
require it be reimbursed for the cost of labour and materials and
other direct or indirect costs incurred by Farco to the date of cancellation.
||Farco will be entitled without liability to the Customer to cancel
an order or delivery of an order if:
(a) the Customer becomes insolvent; or
(b) the Customer fails to pay any amount for the Goods on the due
||All intellectual property in, and relating to, the Goods (including
patents, trademarks, copyright, know how, designs, trade secrets and
information confidential to Farco) and any amendments to intellectual
property will remain the property of Farco and will not be disclosed
to any other person by the Customer without the written consent of
||In the event the Customer provides Farco with specifications for
design and/or manufacture of goods by Farco for the Customer, the
Customer warrants to Farco that the specifications and any Goods manufactured
by Farco based on the said specification will not infringe the copyright,
patent design or other intellectual property rights of any third party,
and the Customer will indemnify and keep indemnified Farco from and
against any and all claims, liabilities, obligations, expenses or
damages Farco may suffer or incur as a result of the use by Farco
of the specification.
||If Farco waives any breach of the Terms of Trade by the Customer
the waiver will not affect Farco's right to exercise its rights under
these Terms of Trade at any future time.
||Each clause in these Terms of Trade is severable and if any clause
is held to be illegal or unenforceable, then the remaining clauses
will remain in full force and effect.
||These Terms of Trade will be interpreted in accordance with and
governed by the laws of New Zealand and New Zealand Courts will have
exclusive jurisdiction over any dispute in relation to the Goods or
these Terms of Trade.