Footwear & Apparel NZ Ltd -Terms and Conditions of Trade 

1. Definitions 

1.1 “Seller” shall mean Footwear & Apparel NZ Ltd. 

1.2 “Buyer” shall mean the buyer or any person or Seller acting on behalf of and with the authority of the buyer. 

1.3 “Guarantor” means that person (or persons) who agrees herein to be liable for the debts of the Buyer if a Limited Liability Seller in a principal debtor basis. 

1.4 “Goods” shall have the same meaning as in section 2 of the Sale of Goods Act 1908 and are goods supplied by the seller to the buyer (and where the context so permits shall include any supply of Services as herein after defined). 

1.5 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra). 

1.6 “Price” shall mean the cost of the goods as agreed between the Seller and the Buyer subject to clause 5 of this contract. 

2. Acceptance 

2.1 Any instructions received by the Seller from the Buyer for the supply of goods shall constitute acceptance of the terms and conditions contained herein. Upon acceptance of these terms and condition by the buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the Manger of the Seller. 

2.2 None of the Seller’s agents or representatives are authorised to make any representations, statements, condition or agreements not expressed by the Manager of the Seller in writing nor is the Seller bound by any such unauthorised statements. 

3. Goods 

3.1 The goods are as described on the invoices, quotation, tender documents, work authorisation or any other work commencement forms as provided by the Seller to the Buyer. 

3.2 In the case of second hand Goods the Buyer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising. 

3.3 The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that: 

i) such discrepancy in quantity shall not exceed 5% 

ii) the Price shall be adjusted pro rata to the discrepancy. 

4. Sale 

4.1 The goods shall be supplied in accordance with the description contained in the seller’s specification, quotation, tender documents, work authorisation, or any other work commencement forms. 

a) the Seller may from time to time make changes in the specification of the goods which are required to comply with safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the goods. 

4.2 If the Goods are to be delivered to the Buyer on approval, or “on sale or return” or other similar term then property in the Goods shall, subject to the provisions as to the rights of the unpaid Seller, pass to the 

Buyer: 

a) When the Buyer signifies the Buyer’s approval or acceptance to the Seller, or does any other act adopting the transaction. 

4.3 The bulk of the Goods will correspond with the sample in quality provided that the Seller shall have no liability to the Buyer unless more that (5%) of the Goods fail to correspond. 

5. Price and Payment 

5.1 The price shall be as indicated on invoices provided by the seller to the buyer in respect of goods supplied; or 

5.2 The price shall be the price of the seller’s current price at the date of delivery of the goods; or 

5.3 The price of the goods shall be the seller’s quoted price which shall be binding upon the seller provided that the buyer shall accept in writing the seller’s quotation within twenty-eight (28) days. 

5.4 Time for payment for the Goods and/or Service shall be of the essence and will be stated on the invoice, quotation, tender documents, work authorisation form or any other work commencement forms. If no time 

is stated then payments shall be due on delivery of the Goods. 

5.5 The method of payment will be made by cash, or by cheque, or by Bank Cheque, or by EFTPOS, or by credit card or by any other method as agreed to between the buyer and the seller. 

6. Delivery of Goods 

6.1 Delivery and installation of the goods shall be made to the Buyer’s address. The buyer shall make all arrangements necessary to take delivery of the goods whenever they are tendered for delivery. Or delivery of the goods shall be made to the Buyer at the seller’s address. 

6.2 When the Goods at the date of this agreement are in possession of a third person there is no delivery by the Seller to the Buyer unless and until such third person acknowledges to the Buyer that the Goods are being held on behalf of the Buyer subject to the issue or transfer by the seller of documents of title to the Goods. 

7. Risk 

7.1 If the Seller retains property in the Goods nonetheless all risk for the Goods passes to the Buyer on delivery. 

7.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of 

Trade (including the right to receive payment of the balance of the Contract Price for the goods), to receive all insurance proceeds payable for the Goods. This applies, whether or not the Contract Price has become 

payable under the Contract. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries. The Seller will apply the insurance proceeds as follows: 

(i) first, in payment of the Contract Price of the Goods that are damaged or destroyed if unpaid; 

(ii) second, in payment of the outstanding Contract Price of any other goods supplied to the Buyer by the Seller, whether under the contract or otherwise; 

(iii) third, in payment of any other sums payable to the Seller by the Buyer on any account. 

(iv) fourth, any balance is to be paid to the Buyer. 

8. Defects 

8.1 The buyer shall inspect the goods/services on delivery or installation and shall within seven (7) days of delivery notify the seller of any alleged defect, shortage in quantity, damage or failure to comply with the 

description or sample. The buyer shall afford the seller an opportunity to inspect the goods within a reasonable time following delivery,. If the buyer shall fail to comply with these provisions the goods/services shall be conclusively presumes to be in accordance with the contract and free form any defect or damage which would be apparent on a reasonable examination of the goods/services and the buyer shall be deemed to have accepted the goods/services. 

9. Disclaimer 

9.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him and the Buyer acknowledges that he buys the goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or guarantee other than the guarantee given by the 

Manufacturer. 

10. Warranty 

10.1 The conditions applicable to the warranty are as follows: 

i) The warranty period is (unless a different period is agreed to in writing) a period of 90 days from the delivery date. 

10.2 The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through: 

i) Failure by the Buyer to correctly set up, apply or fit the product; or 

ii) Failure on the part of the Buyer to properly maintain the product; or 

iii) Failure on the part of the Buyer to follow any instructions or guidelines provided by the manufacturer of the product or by the Seller; or 

iv) Any use of the product otherwise than for any application specified on a quote or order form; or 

v) The continued use of the product after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user of the product; or 

vi) Fair wear and tear on the product; or 

vii) Human error in operating or using the product; or 

viii) any accident; or 

ix) An act of God. 

10.3 Notwithstanding paragraph (a above), the warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if: 

i) the product is fitted to or used on any application other than any application which is specified in an order or quote form; or 

ii) If the product is repaired, altered or overhauled without the Seller’s consent; or 

11. Consumer Guarantees Act 1993 (“the Act”) 

11.1 This agreement is subject, in all cases except where the customer is contracting within the terms of a trade/business (which cases are specifically excluded), to the provisions of the Consumer Guarantees Act 1993. 

12. Return of Goods 

12.1 Except as provided in this clause, the Buyer is not entitled to return the Goods to the Seller for any reason. For defective Goods which the Buyer is entitled to reject, the Seller’s liability is limited to either (at the 

Seller’s discretion) repairing or replacing the Goods, or refunding the Price provided that: 

(a) the Buyer must notify the Seller within 7 days of delivery that he Goods are defective; 

(b) the Seller is given a reasonable opportunity to investigate the Buyer’s claim; 

(c) the Seller will not be liable to Goods which have not been stored or used in a proper manner; and 

(d) the Seller will not be liable to pay the Buyer any amount more than the amount (if any) the Seller received from the supplier for the defective Goods. 

(e) The Seller may (in its discretion) accept the Goods for credit but this will incur a handling fee of 20% of the value of the returned Goods plus any freight. 

13. Default & Consequences of Default 

13.1 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement. 

13.2 If the buyer defaults in payment of any invoice when due, the buyer shall indemnify the seller from and against all the seller’s legal costs and disbursements calculated on a solicitor and own client basis and in addition all of East Coast Credit Controls Limited’s costs of collection as per that company’s published scheduled rates. 

13.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of

Goods to the Buyer and any of its other obligations under the Contract. The Seller will not be liable to the Buyer for any loss or damage the buyer suffers because the Seller exercised its right under this clause.

13.4 If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply:

An immediate amount equivalent to 10% of the amount overdue levied for administration fees which sum shall become immediately due and payable.

13.5 In the event that:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payment as they fall due, or; 

(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of is creditors, or; 

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of any Buyer,

Then;

(i) the seller shall be entitled to cancel all or any part of any order with the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and 

(ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become due and payable; and 

(iii) the Seller shall be entitled to reclaim any Goods in the Buyer’s possession or control, which have been supplied by the Seller and to dispose of the Goods for its own benefit and shall be entitled to enter, directly or by its agents, upon any land or premises where the Seller believed the Goods which it has supplied are stored without being liable to any person. 

14. Title 

14.1 It is the intention of the seller and agreed by the Buyer that property in the goods shall not pass until: 

(i) Payment, and 

(ii) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the seller and the Buyer, and that the goods, or proceeds of the sale of goods, shall be kept separate until the Seller shall have received payment and all other obligations are met. It is further agreed that: 

14.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the seller’s ownership of rights in respect of the goods shall continue. 

14.3 The Buyer shall not charge the goods in any way nor give any interest in the goods while they remain the property of the Seller. 

14.4 The buyer shall insure and keep insured the goods to the full price against all risks until the price shall be received by the Seller. 

14.5 The Seller may require payment of the purchase price or the balance or the purchase price due together with any other amounts due from the Buyer to the Seller arising out of this agreement, and the Seller may take any lawful steps to require payment of the amounts due and the purchase price. 

14.6 The seller can issue proceedings to recover the price of the goods sold notwithstanding that ownership of the goods may not have passed to the buyer. 

15 Security and Charge 

15.1 Notwithstanding anything to the contrary contained herein or any other rights which the seller may have howsoever: 

(a) The buyer shall if required by the seller execute a register able charge, or otherwise permit the seller or the sellers nominee to execute and register a security interest securing payment of the price for 

the good and/or services provided by the seller hereunder to the buyer together with any monetary obligations arising hereunder whether pursuant to the existing law or that contemplated by the Personal Properties 

Securities Act 1999 or otherwise howsoever, and/or 

(b) Where the seller, as sub-contractor, provides any goods and/or services to the buyer as head contractor, the buyer hereby acknowledges that the seller shall be entitled to a charge on any monies payable to the buyer by whom the buyer is contracted or employed. The buyer shall provide all reasonable details and particulars of his/her/its/their employment or superior contract in writing and upon reasonable request of the seller. The buyer acknowledges and agrees that the sellers shall be entitled to demand payment directly from whosoever has contracted or employed the buyer and the production of these terms and conditions of trade by the seller shall be sufficient evidence of the seller’s right to receive such monies without the need for the payee, employer, head contractor or any other person dealing with the Buyer and/or Seller to make further enquiries; and/or 

(c) Where the buyer and/or the guarantor (if any) is the owner of land, realty or any other asset capable of being charged both the buyer and/or the guarantor agree to mortgage and/or charge all of their joint, and/or several interest in the said land, realty or any other asset to the seller or the seller’s nominee to secure all amounts and other monetary obligations payable under the within terms and conditions of trade. 

The buyer and/or the guarantor acknowledge and agree that the seller (or the seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met. (d) Should the seller elect to proceed in any manner in accordance with this within clause and/or its sub-clauses, the buyer and/or guarantor shall indemnify the seller from and against all the seller’s legal costs and disbursements calculated on a solicitor and own client basis plus all reasonable costs of the seller’s appointed attorney (if any). 

(e) To give effect to the provisions of clause 15 (a) to (d) inclusive hereof the buyer and/or guarantor (if any) do hereby irrevocably nominate constitute and appoint the seller or the seller’s nominee, namely EC Credit Services Limited as the buyer’s and/or guarantors true and lawful attorney to execute mortgages and charges (whether registerable or not) and including such other terms and conditions as the seller and/or EC Credit Services Limited shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the buyer and/or the guarantor in any land, realty or asset in favour of the seller and in the buyer’s and/or guarantor’s name as may be necessary to secure the said buyer’s and/or guarantor’s obligations and indebtedness to the seller and further to do and perform all necessary and other acts including instituting any necessary legal proceeding, and further to execute all or any documents in the seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause. 

16. Lien and Stoppage in Transit 

16.1 Where the Seller has not received or been tendered the whole of the Price, or where a bill of exchange or other negotiable instrument or the like has been dishonoured, the Seller shall have: 

(a) a lien on the Goods; 

(b) the right to retain them for the Price while the Seller is in possession of them; 

(c) a right of stopping the Goods in transit whether or not delivery has been made or ownership has passed; and 

(d) a right of resale, 

(e) the foregoing right of disposal, provided that the lien of the Seller shall continue despite the commencement of proceedings or judgement for the Price having been obtained. 

17. Cancellation 

17.1 The seller may cancel this contract at any time before the goods are delivered by giving written notice. On giving such notice the seller shall promptly repay to the buyer any sums paid in respect of the price. 

The seller shall not be liable for any loss or damage whatever arising from such cancellation. 

18. Contractual Remedies Act 

18.1 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 16(d) of the Act which states that nothing in the Act shall affect the Sale of Goods Act 1908, were omitted from the 

Contractual Remedies Act. 1979. 

19. Privacy Act 

19.1 The Buyer and the Guarantor/s (if separate to the Buyer) authorises the seller to collect, retain and use any information about the buyer, for the purpose of assessing the buyers creditworthiness or marketing any goods and services provided by the seller to any other party. 

19.2 The buyer authorises the seller to disclose any information obtained to any person for the purposes set out in clause (above clause). 

19.3 Where the buyer is a natural person the authorities under (clause 19.1 &19.2) are authorities or consents for the purposes of the Privacy Act 1993. 

20. Miscellaneous 

20.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. 

20.2 All goods and services supplied by the Seller are subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law which affect the goods or services supplied. 

20.3 The seller 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 the seller of this contract. 

20.4 Neither party shall be liable for any default due to any act of God, war, strike, lock out, industrial action, fire, flood, drought, storm, or other event beyond the reasonable control of either party. 

20.5 Any variation from the plan of scheduled works or specifications or from measurements taken on site, will be charged for on the basis of this quotation and will be shown as extras on the invoice. Payment for all extras must be made in full at their time of completion. 

20.6 The buyer shall not set off against the price amounts due from the seller whether under the applicable contract of sale or otherwise. 

20.7 The seller may license or sub-contract all or any part of its rights and obligations under this contract without the buyers consent. 

Footwear & Apparel NZ Ltd

Unit 2: 110 Whakatiki St

Upper Hutt New Zealand 

Phone 0800-826-826 or (04) 527 9163

Email office@faanz.co.nz 

www.footwearandapparel.co.nz