Website Trading terms and conditions of FERN360 Limited
These terms and conditions are the contract between you and FERN360 Limited (“us”, “we”, etc). By visiting or using Our Website, you agree to be bound by them.
I / We are FERN360 Limited, [a company registered in New Zealand, company number 7683297]. Our address is 8A Triton Drive, Rosedale, Auckland 0632, New Zealand.
You are: Anyone who uses Our Website.
Please read this agreement carefully and save it. If you do not agree with it, you should leave Our Website immediately.
If you are to become an approved distributor of our product portfolio (full or part of the range) you will also be required to sign a distribution agreement in conjunction with this website agreement
The website terms and conditions:
In this agreement:
means any person or business contracted by us to carry Goods from us to you.
means any material in any form published on Our Website by us or any third party with our consent.
means any of the goods we offer for sale on Our Website, or, if the context requires, goods we sell to you.
means latest version of pre-defined commercial rules of international trade published by the International Chamber of Commerce in 2020
means any website of ours, and includes all web pages controlled by us.
In this agreement unless the context otherwise requires:
- a reference to a person is a reference to one or more individuals, whether or not formally in partnership, or to a corporation, government body, or other association or organisation.
- these terms and conditions apply to all supplies of Goods by us to any customer. They prevail over any terms proposed by you.
- any agreement by either party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.
- except where stated otherwise, any obligation of any person arising from this agreement may be performed by any other person.
- in this agreement references to a party include references to a person to whom those rights and obligations are transferred or passed as a result of a merger, division, reconstruction or other re-organisation involving that party.
- the headings to the paragraphs and schedules (if any) to this agreement do not affect the interpretation.
- a reference to an act or regulation includes new law of substantially the same intent as that act or regulation.
- in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party
- these website terms and conditions apply in any event to you as a buyer or prospective buyer of our Goods and so far as the context allows, to you as a visitor to Our Website.
- this agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.
- New Zealand law shall prevail
- Our contract with you
- This website agreement and in conjunction with a signed distributor agreement, contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties.
- Each party acknowledges that, in entering into this agreement, he does not rely on any representation, warranty, information or document or other term not forming part of this agreement.
- If you use Our Website in any way and make an order on behalf of another person, you warrant that you have full authority to do so and you accept personal responsibility for every act or omission by you.
- We do not guarantee that Goods advertised on Our Website are available.
- The price of Goods may be changed by us at any time. We will never change a price so as to affect the price charged to you at the time when you buy those Goods.
- We may change these terms from time to time. The terms that apply to you are those posted here on Our Website on the day you order Goods.
- If in future, you buy Goods from us under any arrangement which does not involve your payment via Our Website; these terms still apply so far as they can be applied.
- We may not sell the Goods in all countries. We may refuse to deliver the Goods if you live in a country we do not serve.
- All prices on the website are displayed in United States (US) Dollars and FOB delivery
- Product Design and specifications are subject to change without notice. Pictures on the website are for reference only, and the actual product shall prevail.
- Acceptance of your order
Before any order can be placed or website login activated, a signed & current FERN360 Limited distribution agreement must be in place
- Your order is an offer to buy from us. Nothing said or done by us is an acceptance of an order until we confirm acceptance in writing, referring to the order. At any point up until then, we may decline to supply the Goods
- If we cannot produce all of the Goods you order, we will offer you alternatives. If this happens you may:
- accept the alternatives we offer;
- cancel all or part of your order.
- Clear delivery instructions must be provided when placing the order
- Cargo insurance is the buyer’s responsibility
- Price and Payment
- The price payable for the Goods that you order is clearly set out on Our Website.
- It is possible that the price may have increased from that posted on Our Website. If that happens, we will not despatch the Goods until you have confirmed that you wish to buy at the new price.
- All prices are in United States (US) Dollars, do not include any local import taxes or duties. Prices are FOB (Free on Board – Country of Manufacturing Origin)
- Payment terms are clearly defined in the FERN360 Limited distribution agreement
- Banking charges by the receiving bank on payments to us will be borne by the buyer, also all other charges relating to payment in a currency other than dollar will be borne by you.
- Any information given by us in relation to exchange rates are approximate only and may vary from time to time and is the sole responsibility of the buyer
- If, by mistake, we have under-priced the Goods, we will not be liable to supply those Goods to you at the stated price, provided that we notify you before we dispatch these to you.
- The price of the Goods does not include the delivery charge and is the sole responsibility of the purchaser
- Payment Terms
- Payment terms are clearly defined in the FERN360 Limited distribution agreement
- On request, we will supply details of our bank account so as to enable you to pay directly via the Internet.
- Delivery and pick up
- Goods are generally available for dispatch within 30 days from the day you place an order to purchase the Goods and payment terms are meet.
- Deliveries will be made to the address stipulated in your order. You must ensure that someone is present to accept delivery.
- If we are not able to able to have the goods available for dispatch within 30 days of the date of your order, we shall notify you by e-mail to arrange another date for dispatch.
- We may dispatch the Goods in instalments if they are not all available at the same time for delivery, with the approval of both parties.
- All Goods must be signed for on delivery by an adult aged 18 years or over. If no one of that age is at the address when the delivery is attempted the Goods may be retained by the driver. When your Goods arrive it is important that you check immediately the condition and quantity. If your Goods have been damaged in transit, you must refuse the delivery and immediately contact your marine insurance agent. Marine cargo insurance is the sole responsibility of the purchaser
- Signing "Unchecked", "Not Checked" or similar is not acceptable.
- If we agree with you to deliver on a particular day or at a particular time, we will do our best to comply. But no time given is to be treated as contractual. So we are not liable to you for any expense or inconvenience you incur on account of delayed delivery or non-delivery.
- Some Goods are so large and heavy that delivery times may be slightly longer. In this case, approximate delivery dates will be given when you place your order.
- Time for delivery specified on the order, if any, is an estimate only and time shall not be of the essence.
- Pick ups are not available
- The following Incoterms shall apply to the carriage and transport of the Goods:
- FOB [named port, place or point]
- All rights, obligations, conditions and matters relating to the above Incoterm shall apply to this agreement
- Unless otherwise agreed in this agreement so far as any cost is not allocated by the relevant Incoterm, it shall be payable by you.
- Foreign taxes and duties
- If you are not in New Zealand, we have no knowledge of, and no responsibility for, the laws in your country.
- You are responsible for purchasing Goods which you are lawfully able to import and for the payment of import duties and taxes of any kind levied in your country.
- Liability for subsequent defects
- We will repair or replace the Goods showing a defect in the following circumstances:
- the defect is reported to us within 12 months of purchase;
- the defect results only from faulty design or manufacture;
- you have returned the defective Goods or parts to us if we have so requested.
- If we agree that we are liable, we may refund the cost of return carriage and will repair or replace the Goods free of charge.
- If we repair or replace Goods, you have no additional claim against us either under this agreement or by statute or common law, in respect of the defect.
- The purchaser will ensure all local product certifications and regulations are meet prior promotion and/or sale of the product/s into the purchaser’s local country
- Goods returned
These provisions apply in the event that you return any Goods to us for any reason:
- We do not accept returns unless there was a defect in the Goods at the time of purchase or we have agreed in correspondence that you may return them.
- The Goods must be returned to us as soon as any defect is discovered but not later than 30 days.
- So far as possible, Goods should be returned:
- with both Goods and all packaging as far as possible in their original condition;
- securely wrapped;
- including our delivery slip;
- at your risk and cost.
- The procedure for return of Goods is set out in our distribution agreement. If you do not follow this procedure, we may be unable to identify you as the sender of the Goods.
- In returning faulty Goods please encloses with it a note clearly stating the fault and when it arises or arose.
- Most of the Goods are covered by the manufacturer's guarantee for a minimum of 12 months. Please first check the plug, fuse, batteries and the manufacturer's operating instructions.
- If we agree that the Goods are faulty, we will:
- repair or replace the Goods as we choose.
- The law differs from one country to another. This paragraph applies so far as the applicable New Zealand law allows.
- All the conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
- We or our Content suppliers may make improvements or changes to Our Website, the Content, or to any of the Goods, at any time and without advance notice.
- You are advised that Content may include technical inaccuracies or typographical errors. This is inevitable in any large website. We would be grateful if you bring to our immediate attention, any that you find.
- We give no warranty and make no representation, express or implied, as to:
- the quality of the Goods;
- any implied warranty or condition as to merchantability or fitness of the Goods for a particular purpose;
- the correspondence of the Goods with any description;
- the adequacy or appropriateness of the Goods for your purpose;
- the accuracy of any Content on Our Website;
- non-infringement of any right.
- We are not liable in any circumstances for special, indirect or consequential loss or any damages whatsoever resulting from loss of use, loss of data or loss of revenues or profits, whether in an action of contract, negligence or otherwise, arising out of or in connection with your use of Our Website or the purchase of Goods.
- In any event, our liability under this contract is limited, to the maximum extent permitted by law, to the value of the Goods you have purchased.
- Your login account with us
- You agree that you have provided, and will continue to provide accurate, up to date, and complete information about yourself. We need this information to provide you with the Goods.
- If you use Our Website, you are responsible for maintaining the confidentiality of your account and password and for preventing any unauthorised person from using your account.
- You agree to accept responsibility for all activities that occur under your account or password. You should tell us immediately if you believe some person has accessed your account without your authority and also log in to your account and change your password.
- Intellectual property
- We will defend the intellectual property rights in connection with our Goods and Our Website, including copyright in the Content whether provided by us or by any other content provider (including copyright in: text, graphics, logos, icons, images, audio clips, digital downloads, data, and software).
- Except as set out below, you may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part.
- You may not use our name or logos or trademarks or any other Content on any website of yours or that of any other person.
- Subject to the other terms of this agreement, you may download or copy Content only for your own personal use, provided that you maintain all copyright and other notices contained in it. You may not store electronically any significant portion of any Content.
You agree to indemnify us against all costs, claims and expense arising directly or indirectly from:
- your failure to comply with the law of any country;
- your breach of this agreement;
- any act, neglect or default by any agent, employee, licensee or customer of yours;
- a contractual claim arising from your use of the Goods.
- Security of Our Website
If you violate Our Website, we shall take legal action against you.
You now agree that you will not, and will not allow any other person to:
- modify, copy, or cause damage or unintended effect to any portion of Our Website, or any software used within it.
- link to Our Website in any way that would cause the appearance or presentation of the site to be different from what would be seen by a user who accessed the site by typing the URL into a standard browser;
- download any part of Our Website, without our express written consent;
- collect or use any product listings, descriptions, or prices;
- collect or use any information obtained from or about Our Website or the Content except as intended by this agreement;
- aggregate, copy or duplicate in any manner any of the Content or information available from Our Website, other than as permitted by this agreement or as is reasonably necessary for your use of Our Website;
- share with a third party any login credentials to Our Website;
- Despite the above terms, we now grant a licence to you to:
- create a hyperlink to Our Website for the purpose of promoting an interest common to both of us. You can do this without specific permission. This licence is conditional upon your not portraying us or any goods in a false, misleading, derogatory, or otherwise offensive manner. You may not use any logo or other proprietary graphic or trademark of ours as part of the link without our express written consent.
- you may copy the text of any page for your personal use in connection with the purpose of Our Website.
- Miscellaneous matters
- So far as any time, date or period is mentioned in this agreement, time shall be of the essence.
- If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
- The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
- No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
- Any communication to be served on either party by the other shall be delivered by hand or sent by express post or recorded delivery or by e-mail.
It shall be deemed to have been delivered:
if delivered by hand: on the day of delivery;
if sent by post to the correct address: within 72 hours of posting;
If sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender.
- In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
- This agreement does not give any right to any third party under the Contract and Commercial Law Act 2017 or otherwise.
- Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond its reasonable control
- In the event of any conflict between any term of this agreement and the provisions of the constitution of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.
- The validity, construction and performance of this agreement shall be governed by the laws of New Zealand and the parties agree that any dispute arising from it shall be litigated only in that country.