Terms Conditions
FODN STANDARD
TERMS AND CONDITIONS
(A) FODN carries on the business of manufacturing and selling the Goods.
(B) The Customer wishes to buy and FODN wishes to sell the Goods on the terms and conditions set out in this agreement.
FORMATION OF THE CONTRACT
1.2. The Customers order shall constitute an offer and shall be deemed to incorporate the terms of this agreement and shall not be deemed to be accepted by FODN unless and until confirmed in writing by an authorised representative of FODN.
1.3. FODN reserves its right to withdraw or revise a Quotation or to refuse to accept any order on any grounds whatsoever at any time prior to the creation of a binding contract.
1.4. Any variation to these conditions shall be inapplicable unless agreed in writing by FODN. Once a contract exists between the Customer and FODN it cannot be amended by the Customer except with FODN written consent and upon terms which will indemnify FODN against all loss suffered by it as a result of such variation.
1.5. The price shall be the price quoted by FODN. The price is exclusive of GST which shall be due at the rate ruling on the date of FODN GST Invoice.
FINANCE
2.1. All accounts are strictly proforma and production will not commence until either:
a) a 50% (or 70% see 7.1.6) deposit payment or full payment has cleared in FODN bank account; or
b) a credit account has been previously agreed in writing between the parties.
2.2. If a credit account has been agreed full net payment shall be cleared on or before the thirtieth calendar day of the date of FODN Invoice, unless specifically agreed in writing beforehand.
2.3. A FODN Invoice will be issued to the Customer upon receipt of payment.
2.4. Where any outstanding payment is not received by the Due Date, FODN reserves the right to charge:
a) Storage costs which will vary from order to order for a limited period entirely at FODN discretion;
b) Interest on the balance outstanding in accordance with the Late Payment of Commercial Debts
ORDERS
3.1. Each order shall be deemed to be a separate offer by the Customer to purchase Goods on the terms of this agreement, which FODN shall be free to accept or decline at its absolute discretion.
3.2. No order shall be deemed to be accepted by FODN until it issues either a Deposit Receipt or Proforma Invoice or GST Invoice or (if earlier) FODN notifies the Customer that the order is ready for collection.
3.3. All orders will be processed in accordance with clause 5, 6, 7.
3.4. FODN shall assign an order number to each order it accepts and notify such order numbers to the Customer. Each party shall use the relevant order number in all subsequent correspondence relating to the order.
MANUFACTURE QUALITY AND PACKING
4.1. The Goods supplied to the Customer by FODN under this agreement shall:
a) conform to the specification;
b) be of satisfactory quality (within the meaning of the Sale of Goods Act , as amended) and fit for any purpose held out by FODN ;
c) be free from defects in design, material and workmanship and remain so for 12 months after delivery subject to warranty conditions in clause 14;
and
d) comply with all applicable statutory and regulatory requirements.
4.2. Notwithstanding clause 4.1, except as set out in this agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
4.3. FODN shall ensure that the Goods are properly packed and secured in such a manner as to enable them to reach their destination in good condition.
4.4. FODN shall obtain and maintain in force for the term of the contract all licences, permissions, authorisations, consents and permits needed to manufacture and supply the Goods in accordance with the terms of this agreement.
4.5. FODN shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to the manufacture, packing, packaging, marking, storage, handling, and delivery of the Goods.
GENERAL ORDER PROCESSING
5.1. Initial discussion with the Customer to determine furniture requirements, together with preliminary space planning Visuals where deemed applicable by FODN .
5.1.2 A Quotation for the items required is then issued by FODN .
5.2. Upon approval by the Customer of the items detailed in the Quotation, a Proforma Invoice is issued, requesting payment of its total value.
5.3. Upon receipt of a minimum of a 50% deposit against the Proforma Invoice, a Deposit Receipt is issued, and production of the order commences.
5.4. The balance of the order is requested prior to delivery.
5.5. Upon Receipt of cleared funds into FODN bank account the balance of payment a GST Invoice is issued together with a Delivery Sheet.
5.6. The Goods are delivered.
INTERIOR DESIGN ORDER PROCESSING
6.1. Any Interior Design Order will be processed by going through the following stages:
6.1.1.1. A free initial discussion of concept with the Customer, and in some instances a site visit with on occasion site measurements being taken.
6.1.1.2. Where the visit involves a journey in excess of 30 Kilometres from FODN head office, or a visit which is likely to exceed 2 hours in time FODN reserves the right to charge disbursements where it deems necessary on its discretion.
6.1.2. Provision of preliminary Visuals where applicable, and a written confirmation of the Customers design brief, and an Proforma Invoice detailing requirements as agreed between the Customer and FODN. The Proforma Invoice will also levy an Interior Design Charge for each separate Area of the premises.
6.1.3. Customer issues a written approval of the preliminary Visuals. This can be done by:
a) a written statement by the Customer; or
b) a payment issued against the Proforma Invoice.
6.1.4. Upon receipt of a deposit paid against the Proforma Invoice a Deposit Receipt will be issued and the order put into production.
6.1.5. FODN designers will then work to the brief agreed towards the production of Visuals.
6.1.6. Any additional Goods will be issued as additional Proforma Invoices.
6.1.7. FODN shall present a final design, in the form of Visuals where applicable.
6.1.8. The final balance of payment of all related orders is requested by FODN prior to delivery of any Goods.
Notes: FODN reserves the right to review its procedures and wherever possible with as much notice as possible.
6.2. Any alteration by the Customer of their brief (as referred to in 6.1.2) however small will incur additional costs equal to or less than the Design Fee originally charged.
6.4. The balance of the order is requested prior to delivery.
6.5. Upon Receipt of balance of payment into FODN bank account a GST Invoice is issued together with a Delivery Sheet.
6.6. The Goods are delivered.
BESPOKE GOODS ORDER PROCESSING
7.1. Where the Customer wishes to purchase Goods from FODN which are not to the specification of Goods ordinarily offered for sale by FODN (and identified in FODN promotional literature / website from time to time) the following procedure shall apply:
7.1.1. Where deemed necessary by FODN or where demanded by the Customer, FODN will work with the Customer towards the production of a set of drawings and specifications detailing the proposed bespoke product/or Goods.
7.1.2. Any demand by the Customer for drawings must be stated prior to Quotation stage, otherwise additional associated costs may necessitate re-quotation of the entire order at FODN discretion.
7.1.3. FODN will then issue written confirmation of the approval of the specification and drawings.
7.1.4. At the same time as approving the drawings and specification FODN will confirm to the Customer an initial budget Quotation for the supply of the proposed Goods. A further chargeable site visit by a representative of FODN will usually be required prior to a final Quotation.
7.1.5. Upon approval by the Customer of the items detailed in the Quotation, an Proforma Invoice is issued, requesting payment of its total value.
7.1.6. Upon receipt of a minimum of a 70% deposit against the Proforma Invoice, a Deposit Receipt is issued, and production of the order commences.
7.1.7. The balance of the order is requested prior to delivery.
7.1.8. Upon Receipt of cleared funds into FODN bank account the balance of payment a GST Invoice is issued together with a Delivery Sheet.
7.1.9. The Goods are delivered.
7.2. FODN will be under no liability for, and the Customer will fully indemnify FODN against any awards, costs, claims, damages, demands, expenses, losses or other liabilities (howsoever incurred) which arise in respect of:
a) any and all infringement of any intellectual property rights of any third party which may arise as a result of FODN supplying Goods which conform with such specifications agreed in accordance with this clause; and
b) any unforeseen additional costs associated with works carried out on site.
CUSTOMER'S OWN MATERIAL (COM)
8.1. FODN will not be held liable for the unsuitability of fabric specified, and/ or supplied by the Customer. This includes, but is not limited to, costs arising for subsequent re-upholstery due to unsuitability of the fabric.
8.2. Unless specific written instructions are received from the customer at the point of ordering detailing how the fabric is to be used, FODN will upholster the Goods at their own discretion.
OWNERSHIP OF GOODS
9.1. FODN shall retain title in the Goods until final payment is made.
9.2. Until title in the Goods pass to the Customer the Customer shall hold the Goods on a fiduciary basis as trustee for FODN and shall:-
a) not permit any charge, lien or other encumbrance whatsoever to be created over any property of FODN ;
b) take proper care of the Goods and take all reasonable steps to prevent damage to or deterioration of them;
c) store the Goods separately from all other Goods in its possession and marked in such a way that they are clearly identifiable as FODN Property;
and
d) insure and keep insured the Goods to their full value against all risks until the date that property in the Goods passes from FODN and shall upon reasonable notice furnish FODN with satisfactory evidence that adequate policies of insurance are being maintained and that the premiums are paid up to date;
e) give FODN such information relating to the Goods as FODN may from time to time require.
9.3. FODN reserves the right to repossess and resell any Goods to which it has retained title.
9.4. The Customer grants an irrevocable right and licence to FODN and its employees and agents to enter the Customers premises, or agrees to procure such rights in the event that the Goods are stored at premises other than the Customers premises, during normal business hours for the purpose of inspecting and /or repossessing Goods to which FODN has retained title. This right and licence shall continue to subsist notwithstanding the termination for any reason of a contract and is without prejudice to any accrued rights of FODN under a contract or otherwise.
9.5. Where the Customer resells the Goods before payment in respect thereof has been received in full by FODN the Customer shall hold as trustee for FODN all monies recovered from the resale of those Goods and shall not mingle such monies with other monies or pay them into an overdrawn bank account. In relation to any resale the Customer does not sell as FODN agent and FODN accepts no liability in this respect.
9.6. Notwithstanding the provisions of this clause 9, FODN may bring an action against the Customer for the price of any Goods in the event of non-payment by the Customer by the Due Date even though property in the Goods has not passed to the Customer.
RISK
10.1. Risk in Goods shall pass onto the Customer upon delivery.
INSTALLATIONS
11.1. Where FODN undertakes work or provides labour (which it may sub-contract) at the Customers premises the Customer shall indemnify FODN against all liability (including without limitation in respect of employee or other third party claims) arising directly or indirectly from defects in or unsuitability of the works or site or of materials ( other than FODN employees and howsoever arising.
11.2. The Customer shall be responsible for ensuring compliance with all statutory requirements and third party rights in connection with the siting, installation, erection and use by FODN , or the provision by FODN of services to the Customers order and shall indemnify FODNaccordingly.
DELIVERY AND RETURNS
12.1. Delivery is to be arranged by FODN unless specifically agreed that the Customer shall collect from a location designated by FODN. FODN shall insure the Goods in transit for all risks on a standard cargo policy for all vessel including aircraft and other conveyances.
12.2. Notwithstanding that FODN may have delayed or failed to deliver the Goods (or any of them) promptly the Customer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 3 months of the delivery date.
12.3. Notwithstanding the provisions of Order Processing Clause FODN shall not be bound to deliver the Goods until the Customer has paid for them.
12.4. Delivery of the Goods shall take place at Customers address on the delivery date, as stated on the Delivery Sheet.
12.5. FODN promises to deliver the Goods during the pre-agreed week confirmed on the Delivery Sheet provided with the GST Invoice.
12.6. Notwithstanding clause 12.5 if FODN is unable to deliver on time, i.e. during the week confirmed on the Delivery Sheet, FODN will refund in full the delivery charge ONLY. This is the full extent of any claim which can be made by the Customer for non-adherance to this pre-agreed delivery date however and FODN shall not be liable for any loss or damage whatsoever due to failing to deliver the Goods (or any of them) promptly or at all.
12.7. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
12.8. The Customer is solely responsible for unloading the Goods at the point of delivery.
12.9. If the Customer refuses or fails to take delivery of Goods tendered or fails to take any action necessary on its part for delivery of the Goods, FODN shall be entitled to terminate the contract with immediate effect, dispose of the Goods as they may determine, and/or recover from the Customer any loss and additional costs incurred as a result of such refusal or failure (including, without limitation, storage costs from the Due Date of delivery).
12.10. The Customer shall be deemed to have accepted the Goods 5 days after delivery. After acceptance the Customer shall not be entitled to reject any Goods which are not in accordance with the contract.
12.11. FODN shall repair or replace free of charge Goods damaged or lost in transit on condition that the Customer has (other than in cases of the Goods being lost in transit):
a) not signed for and accepted the Goods as having been received in good order; and
b) upon delivery immediately notified FODN of the exact basis on which the Customer has rejected the Goods as not having been received in good order.
12.12. Due delivery of the Goods shall not be deemed to have taken place until replacement or repaired Goods have been delivered by FODN to the Customer.
12.13. Any defect or damage (other than latent defects) which is not reasonably apparent on receipt shall be notified by the Customer to FODN within three business days of receipt. Damaged Goods must be returned to FODN before replacement will be considered. Agreement and a Goods return sheet must be obtained from FODN before any Goods are returned.
ACCEPTANCE AND DEFECTIVE GOODS
13.1. FODN has absolute discretion to decide whether Goods are defective.
13.2. The Customer may reject any Goods delivered to it that do not comply with clause 4, provided that notice of rejection is given to FODN:
a) in the case of a defect that is apparent on normal visual inspection, within three business days of the Delivery Date; and
b) in the case of a latent defect, within a reasonable time of the latent defect having become apparent.
13.3. If the Customer fails to give notice of rejection in accordance with clause 12.13 it shall be deemed to have accepted such Goods.
13.4. If the Customer rejects Goods under clause 12.13 then the Customer shall be entitled to:
a) require FODN to repair or replace the rejected Goods; or
b) require FODN to repay the price of the rejected Goods in full.
13.5. Once FODN has complied with the Customer's request, it shall have no further liability to the Customer in respect of the rejected Goods' failure to comply with clause 4.
13.6. The terms of this agreement shall apply to any repaired or replacement Goods supplied by FODN.
13.7. If delivery is not refused, and the Customer does not notify FODN in accordance with Clause 12.13, the Customer shall not be entitled to reject the Goods and FODN shall have no liability for any defect or failure which was reasonably apparent upon inspection, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the contract.
13.8. In no event shall the Customer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable to reject them.
13.9. Minor variations to the quality, colour, design, dimensions, finishing and workmanship of the Goods which are customary in the trade will not be sufficient grounds on which the Customer may either refuse to accept, or reject the Goods.
WARRANTY
14.1. FODN warranty will be deemed to have commenced from the time at which the Goods are delivered to the Customer.
14.1.1. If the Customer requests the Goods to be held in storage by FODN , from the day the storage commences.
14.2. If the Goods are held in storage, FODN will inform the Customer of commencement of the warranty period in writing. The Customer can inspect the Goods in storage at any point during the warranty period.
14.3. Subject to the clause 16 FODN warrants that if any defect in workmanship or materials in the Goods is notified to FODN within 12 months of the date of delivery of the Goods to the Customer FODN shall, without charge, repair or at its discretion replace the Goods.
14.4. Clause 14.3 shall not apply if damage is caused by misuse, inappropriate storage or faulty installation.
14.5. FODN shall not be liable for a breach of the warranty, condition or guarantee if the defect arises because the Customer failed to follow FODN care instructions.
INSURANCE
15.1. FODN shall ensure that any sub-contractors also maintain adequate insurance having regard to their obligations under this agreement.
LIMITATION OF LIABILITY
16.1. This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and sub-contractors) to each other in respect of:
a) any breach of this agreement;
b) any use made or resale of the Goods by the Customer, or of any product incorporating any of the Goods; and
c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
16.2. Nothing in this agreement shall limit or exclude the liability of either party for:
a) death or personal injury resulting from negligence; or
b) fraud or fraudulent misrepresentation; or
c) breach of the terms implied by section 12 of the Sale of Goods Act ; or
16.3. Without prejudice to clause 17.1 FODN'S total liability arising under or in connection with this agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall not in any event exceed the price paid or to be paid for the Goods under the contract.
TERMINATION
18.1. A party shall be entitled to terminate this agreement with immediate effect by giving written notice to the other party if:
a) the other party fails to pay any undisputed amount due under this agreement on the Due Date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
b) the other party commits a material breach of its obligations under this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after receipt of notice in writing requiring it to do so; or
c) the other party commits a series of persistent minor breaches which when taken together amount to a material breach; or
d) the other party suspends, or threatens to suspend, payment of its debts or is, or is deemed to be, insolvent or unable to pay its debts as they fall due for payment or admits inability to pay its debts; or
e) the other party enters into any composition or arrangement with its creditors; or
f) an order is made or resolution is passed, or any analogous proceedings are taken for the winding-up, administration or dissolution (other than for the purposes of a solvent amalgamation or reconstruction) of the other party; or
g) any liquidator, trustee in bankruptcy, receiver, administrative receiver, administrator or similar officer is appointed over or in respect of the other party or any part of its business or assets; or
h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
j) the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
K) A breach of any of clauses 2 and 13 shall be a material breach of obligations for the purposes of this clause.
17.2. Termination of this agreement shall not prejudice any of the parties' rights and remedies which have accrued as at termination.
OBLIGATIONS ON TERMINATION
18.1. On termination of this agreement each party shall promptly:
a) return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it or a member of its Group in connection with the supply and purchase of the Goods under this agreement;
b) return to the other party all documents and materials (and any copies) containing the other party's Confidential Information;
c) erase all the other party's Confidential Information from its computer systems (to the extent possible); and
d) on request, certify in writing to the other party that it has complied with the requirements of this clause.
CANCELLATIONS
19.1. If any order is cancelled prior to delivery, FODN shall be entitled to claim as damages an amount up to eighty percent of the value of the order and shall have the right to realise, at its discretion all monies, securities, valuables and Goods held by it on behalf of the Customer and to apply the proceeds in or towards the satisfaction of such damages.
19.2. Bespoke Goods or items which are not FODN Standard Items cannot be accepted for return unless otherwise agreed.
VARIATION AND WAIVER
20.1. Any variation of this agreement must be in writing and signed by or on behalf of the all parties.
20.2. Any waiver