FUJIFILM NZ STANDARD TERMS OF TRADE (Effective 7 June 2022)
The following terms (Terms of Trade) apply to, are incorporated into and govern every contract entered into between FUJIFILM NZ Limited (FUJIFILM NZ) and you for the supply of any products, inventory, equipment, any other goods, and/or services by FUJIFILM NZ to you (Goods) at any time. FUJIFILM NZ can vary these Terms of Trade at any time by notifying you of any amendments on its website at www.fujifilm.co.nz. It is a condition of ongoing supply, pursuant to any contract between you and FUJIFILM NZ or any order for the supply of Goods that you may place with FUJIFILM NZ, that these Terms of Trade are signed and returned to FUJIFILM NZ.
1. Orders: Orders for Goods (Orders) must be placed on the form provided for that purpose by FUJIFILM NZ on its website or otherwise (Order Form) and all details required on that Order Form must be completed in full. All orders are taken subject to acceptance by FUJIFILM NZ and FUJIFILM NZ reserves the right to reject any Order in its sole discretion. A quotation or estimate does not give rise to a binding contract until you place an Order which is subsequently accepted by FUJIFILM NZ. Once an Order is accepted in writing by FUJIFILM NZ, that Order is irrevocable and, together with the relevant Order Form, any credit application and these Terms of Trade, shall form a contract between you and FUJIFILM NZ (Contract).
2. Back Orders: Any Order for Goods that are unavailable at the time of such Order will be placed on back order. Back orders that are: (a) less than one month old will be supplied without prior notice; and (b) more than one month old will not be supplied without your consent.
3. Price for Goods: Prices given are exclusive of GST and other applicable taxes and duties, which, where applicable, are payable by you in addition to the price. Except where a Good has been ordered by you but not yet dispatched to you, prices may be altered at any time and the applicable price will be the current price at time of dispatch.
4. Resale prices: The resale prices indicated in any price list provided to you by FUJIFILM NZ are non-binding suggestions only.
5. Handling charges: Invoices: (a) at or under $250 (ex GST) attract a packing and handling charge of $15 plus GST; and (b) over $250 (ex GST) qualify for free packing and handling. All back orders are exempt from packing and handling fees.
6. Payment: Payment for Goods must be made without set off or deduction, not later than the 20th day of the month following delivery. If you fail to make any payment to FUJIFILM NZ by the date due for payment, FUJIFILM NZ may, at its sole discretion (and without prejudice to any other rights or remedies available to it) require you to pay, on demand, default interest on any amount outstanding at 2.5% per month accruing on a daily basis from the due date for payment until the date when payment is actually made. You will be liable to pay all expenses and costs (including legal costs on a solicitor-client basis) in connection with FUJIFILM NZ recovering or attempting to recover any overdue amount.
7. Delivery: Delivery of Goods to you shall occur when FUJIFILM NZ places such Goods at the disposal of FUJIFILM NZ's nominated carrier at FUJIFILM NZ's premises, unless the parties otherwise agree in writing (Delivery) and no failure or refusal by you to take possession of any Goods shall affect the time of Delivery. Any time stated for Delivery on an Order Form or otherwise is an estimate only and not of the essence of the Contract, and FUJIFILM NZ will in no event be liable for any late Delivery.
8. Risk: All risk of loss or damage in, or in relation to, Goods shall pass to you upon Delivery.
9. Delivery costs: Subject to clause 8, notwithstanding that Delivery has occurred FUJIFILM NZ shall bear all reasonable costs of FUJIFILM NZ's nominated carrier in transporting Goods to your premises, being those premises notified to FUJIFILM NZ by you from time to time, on such terms as FUJIFILM NZ may agree with FUJIFILM NZ's nominated carrier in FUJIFILM NZ's sole discretion, provided that FUJIFILM NZ shall not be responsible or liable for any loss or damage to any Goods, or any loss or damage that you may suffer in relation to the transport of Goods, following Delivery.
10. Non-delivery if payment in arrears: FUJIFILM NZ may refuse to deliver Goods ordered by you if payment of any monies owing to FUJIFILM NZ by you is in arrears, notwithstanding that FUJIFILM NZ has accepted any relevant Order (NonDelivered Order). If we refuse to deliver the Goods to you under this clause, you may elect to either pay us the arrears that you owe us and we will deliver the Goods to you in accordance with clause 7, or you may cancel the Non-Delivered Order.
11. Health and safety: You must adopt and comply with all health and safety legislation and applicable codes of practice in respect of premises which FUJIFILM NZ agents, employees or officers are required to access for purposes of Delivery of any Order. You must draw to the attention of FUJIFILM NZ and its agents, employees and officers your own health and safety policies if relevant to their access to your premises.
12. Defects and returns: 12.1 You must give FUJIFILM NZ written notice of any failure of any Goods within ten (10) days of Delivery, unless expressly agreed otherwise by FUJIFILM NZ. Where such notice is validly given FUJIFILM NZ shall, in its sole discretion, either repair or replace the defective or non-complying Goods or, subject to clause 13, refund the price paid by you for such Goods. Any replaced defective Goods shall become the sole property of FUJIFILM NZ upon Delivery of the relevant replacement Goods and, if required by FUJIFILM NZ, shall be returned to FUJIFILM NZ at FUJIFILM NZ's cost. If you do not notify FUJIFILM NZ of such failure within the specified period, you shall be deemed to have accepted such Goods as being free of defects and complying with all relevant specifications. 12.2 FUJIFILM NZ may, at its discretion, delay the repair or replacement of, or refund of the price of, any Goods for so long as you are in default in relation to any monies owing to FUJIFILM NZ by you and that are in arrears.
13. Credit policy: Goods are supplied in good faith and on a firm sale basis, and not on a consignment or "sale or return” basis. Subject to that, only Goods supplied in error or that are faulty will be considered for credit. When requesting that Goods be credited, an application for those Goods to be credited must be made to FUJIFILM NZ Head Office prior to Goods being returned. Upon FUJIFILM NZ approving an application for Goods to be credited, an "authorisation sticker" with reference number will be forwarded to you and this is to be placed on the exterior of the packaging used to return Goods for credit. Any Goods arriving at FUJIFILM NZ without such "authorisation sticker" and reference number will be returned, freight forward, to you. Credit claims must be lodged within ten (10) days of Delivery of Goods and should include packing slip details and details why the credit is required.
14. Reservation of title: You acknowledge that, pending payment of all amounts owing, and the performance of all obligations, under any Contract, you are in possession of any Goods supplied by FUJIFILM NZ solely as bailee for FUJIFILM NZ. Until such time as you become the owner of Goods you will wherever practicable store them on your premises separately from your own goods or the goods of any other person and in a manner which makes the Goods readily identifiable as Goods of FUJIFILM NZ. Your right to possession of the Goods shall cease if you are in default under these Terms of Trade or any Contract.
15. Security interests: 15.1 On signing these Terms of Trade you grant a continuing security interest in favour of FUJIFILM NZ in all present and after acquired Goods (including, for the avoidance of doubt, products, inventory, equipment and any other goods), as security for payment of all amounts owing, and the performance of all obligations, under any Contract. 15.2 You acknowledge that FUJIFILM NZ may, at your cost, register its security interest in the Goods, and all of your present and future rights in relation to the Goods and any proceeds, on the Personal Property Securities Register established under the Personal Property Securities Act 1999 (PPSA). 15.3 You shall provide all information and do all things including the execution of documents as FUJIFILM NZ may require for the purpose of securing to FUJIFILM NZ the Goods, the payment of all amounts owing and the performance of all of your obligations under these Terms of Trade, and for the purpose of ensuring that FUJIFILM NZ has a perfected first ranking security interest in the Goods and any proceeds under the PPSA. You shall give written notice to FUJIFILM NZ of any change to your name at least 14 days before such change takes effect. 15.4 You will: (a) maintain and keep the Goods in good working order and condition and protected against theft, loss or damage; (b) insure the Goods for market value against loss or damage by fire, theft or other accident and you will not do anything to prejudice such insurance; and (c) permit FUJIFILM NZ at all reasonable times by its agents, employees and officers to enter upon any land or premises owned or occupied by you to view and inspect the Goods. 15.5 You waive your right to receive a copy of any verification statement under the PPSA and agree that as between you and FUJIFILM NZ: (a) You will have no rights under sections 114(1)(a), 116, 120(2) and 121 of the PPSA; and (b) any rights of FUJIFILM in addition to those in Part 9 of the PPSA shall continue to apply. 15.6 Any payments made to FUJIFILM NZ by you on an unspecified basis shall be applied: (a) first, in payment for Goods supplied by FUJIFILM NZ and which have been sold by you; and (b) second, in payment for Goods supplied by FUJIFILM NZ and which have not been sold by you. 15.7 You will not: (a) permit to subsist any other security interest in relation to the Goods; or (b) except in the normal course of business, sell, lease or dispose of, or permit the sale, lease or disposal of, the Goods. 15.8 In addition to any rights that FUJIFILM NZ has under the PPSA, FUJIFILM NZ shall have the right, as your agent, at any time while any amounts owing by you to FUJIFILM NZ under these Terms of Trade remains outstanding, and including (without limitation) if any of the events specified in clause 22 occur, to enter into any premises where Goods are stored and remove them without being responsible for any damage caused in doing so. You shall indemnify FUJIFILM NZ for all such moneys and all costs, charges and expenses in repossessing Goods.
16. Limited warranty: FUJIFILM NZ warrants that Goods sold to you will comply in all material respects with the relevant Goods specifications notified by FUJIFILM NZ to you from time to time and will be free from material defects.
17. Representations and warranties: : Except for the warranty contained in clause 16, FUJIFILM NZ expressly excludes, and you shall not be entitled to rely or seek to rely on, any representation, undertaking, statement or warranty whatsoever, express or implied, made by or on behalf of FUJIFILM NZ concerning the Goods.
18. Consumer Guarantees Act: 18.1 You will not do or omit anything which gives rise to any liability on your part or on the part of FUJIFILM NZ under the Consumer Guarantees Act 1993 (CGA) or the Fair Trading Act 1986. 18.2 You will not make any representation or give any guarantee, warranty or other undertaking in relation to the Goods or any services provided in connection with the Goods to customers other than as shown on packaging, promotional material or documents supplied by FUJIFILM NZ to you or as otherwise authorised in writing by FUJIFILM NZ. 18.3 You shall not hold yourself out as an employee, agent or representative of FUJIFILM NZ to any person. 18.4 You acknowledge that both parties are “in trade” and any Goods you acquire will be for business purposes. The parties agree that the provisions of the CGA are excluded and that it is fair and reasonable that they are bound by this clause.
19. Exclusion of liability: To the maximum extent permitted by law FUJIFILM NZ shall not be liable to you or any third parties for any loss, damage, expenses, injury or consequential, indirect or special loss, loss of profits or loss of opportunity arising directly or indirectly from the supply of Goods to you; any breach of any of FUJIFILM NZ's obligations under these Terms of Trade or any other agreement FUJIFILM NZ has with you; any cancellation of any Contract or other agreement FUJIFILM NZ has with you; any late or non-delivery of Goods; or negligence on the part of FUJIFILM NZ, its servants, agents or contractors.
20. Your liability: You covenant and agree with FUJIFILM NZ that you assume sole and entire responsibility for, and indemnify FUJIFILM NZ from, any and all claims, liabilities, losses, expenses, responsibilities and damages by reason of any claim, proceedings, action, liability or injury arising out of or as a result of: 20.1 a breach of these Terms of Trade or Contract by you or by any person for whom you are responsible; or 20.2 any wilful, negligent or unlawful act or omission by you or any person for whom you are responsible.
21. Implied warranties excluded: FUJIFILM NZ does not provide any warranties for the Goods other than those set out in clause 16. This means that FUJIFILM NZ does not provide any warranties that the Goods meet their description, that the Goods are of merchantable quality, nor that the Goods are fit for the purpose for which you may require them. You must satisfy yourself prior to purchasing the Goods that the specification provided for the Goods is sufficient for all of your requirements, especially as to quality and fitness for the purpose that you wish to use the Goods. To give effect to this clause, to the extent permitted by law, FUJIFILM NZ excludes all terms, conditions, warranties and representations, which are express or implied by statute or at common law (this means you are agreeing to us (being you and FUJIFILM NZ) contracting out of any warranty that is otherwise required to be provided under Part 3 of the Contract and Commercial Law Act 2017 (as amended)) which relates to the description, merchantable quality or fitness for purpose of the Goods. If, however any condition or warranty that is implied into these Terms of Trade under any legislation relating to trade practices, sale of goods, fair trading or other applicable legislation cannot be excluded by contract, or FUJIFILM NZ otherwise has any liability to you, then FUJIFILM NZ, to the fullest extent permitted by law, limits the liability of FUJIFILM NZ for claims by you for breach of the condition or warranty to the repair or replacement of such defective or non-compliant Goods or a refund of, or credit for, the Contract price of such Goods such remedy being at the sole discretion of FUJIFILM NZ.
22. Your default: FUJIFILM NZ may suspend or terminate any Contract, and payment for Goods delivered and work performed up to the date of suspension or termination and any other moneys payable under these Terms of Trade shall immediately become due and payable, if you: (a) fail to pay any moneys due to FUJIFILM NZ; (b) fail to perform any of your obligations to FUJIFILM NZ under these Terms of Trade or any other Contract with FUJIFILM NZ; (c) are unable to pay your debts as they fall due or cease or threaten to cease conducting your business in the normal manner; (d) enter into, or attempt to enter into, any composition, assignment or other arrangement with, or for the benefit of, your creditors; (e) become, threaten or resolve to become, or are in jeopardy of becoming insolvent; (f) being a partnership, dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving; or (g) being a natural person, die.
23. Clauses to survive: Clauses 16, 18, 19, 20, 22, 23 and 26.10 shall survive the termination or expiration of any Contract.
24. Force Majeure: Neither party shall be liable for any delay or failure to perform any obligation in whole or in part under these Terms of Trade or for any loss or damage (including indirect or consequential loss or damage) if such delay or failure is due either in whole or in part of any act of God, pandemic (including any impacts arising whatsoever from COVID-19, whether or not those impacts were reasonably foreseeable at the time of entry into these Terms of Trade), war, civil disturbance, labour dispute, shortage of essential base materials, fire, storm, flood, earthquake, shortage of power, Governmental regulations or decrees, imposition of taxes or any imposts, which would make these Terms of Trade unfeasible, or any cause beyond the reasonable control of either party and comprehended in the term Force Majeure provided however that: (a) any party affected by such cause shall take all reasonable steps to avoid, remove or prevent such cause and shall as soon as reasonably possible after the commencement of such cause give notice thereof to the other party; and (b) the parties' obligations under these Terms of Trade shall, to the extent necessitated by such cause, be suspended while such cause persists; and (c) subject to sub clause (d) of this clause, the parties shall promptly resume performance of these Terms of Trade as soon as such cause is avoided, removed or prevented; and (d) should such failure or delay deprive you or FUJIFILM NZ of substantially the whole of the benefit that was intended to be conferred upon it hereunder for a period of at least two (2) months then that party may in its sole discretion terminate these Terms of Trade by notice in writing to the other party. Nothing in this clause 24 shall excuse payment of any amount owing as it becomes due under these Terms of Trade.
25. Anti-Bribery and corruption: 25.1 You must comply with all applicable laws, rules and regulations relating to anti-bribery and anti-corruption including, but not limited to, the Secret Commissions Act 1910 and the Crimes Act 1961. 25.2 You agree that you will not offer, promise, or pay bribes, other improver payments or advantages to any person with the intention of improperly influencing such person in the exercise of their duties (including to make a decision or to take or refrain from taking other action). 25.3 You agree that upon written notice, FUJIFILM NZ may audit your books and records for the purpose of ensuring your compliance with clauses 25.1 and 25.2.
26.1 Conflicting Terms: In the case of any conflict between an Order or other document submitted by you on the one hand, and these Terms of Trade and/or any other document issued by FUJIFILM NZ on the other hand, these Terms of Trade and/or such other document issued by FUJIFILM NZ shall prevail.
26.2 Credit Enquiries: You hereby authorise FUJIFILM NZ to make any enquires relative to your trading history or creditworthiness which it may consider necessary from time to time, and for that purpose to disclose to and seek from any party whatsoever any information FUJIFILM NZ requires in relation to extending credit to you.
26.3 Variation: : Any verbal agreement which does not conform to these Terms of Trade shall not be binding on FUJIFILM NZ unless it has been confirmed by FUJIFILM NZ in writing.
26.5 Warranties: You warrant that you have used, and will use, your own skill and judgement in deciding to enter into any Contract. You also warrant that you have not relied and will not rely on any (a) representation made by FUJIFILM NZ which is not recorded in these Terms of Trade; or (b) descriptions or illustrations or specifications of Goods contained in any document (including catalogues or publicity material, but excluding the specifications of Goods set out in these Terms of Trade and any Contract) produced by FUJIFILM NZ. If there are any representations that you would like to be binding on FUJIFILM NZ you must ensure those representations are recorded in a Contract
26.6 Assignment: FUJIFILM NZ may assign any Contract or any of its rights, duties or obligations under any Contract at any time.
26.7 Intellectual property: You acknowledge that neither you nor anyone you are responsible for has, or will acquire, any right, title or interest in FUJIFILM NZ's intellectual property (including any intellectual property in the Goods), and neither these Terms of Trade nor your use of FUJIFILM NZ's intellectual property transfers any title or ownership in any of the same to you
26.8 Software: Where FUJIFILM NZ supplies computer hardware, software or servers to you, you are responsible for safeguarding the security of such hardware, software or servers against software viruses, malware, cyberattack or other manipulating program which infiltrates such hardware, software or servers, and FUJIFILM NZ has no liability for any damage, loss or expense caused by any such thing.
26.9 Entire Agreement: With respect to any Contract, the provisions of these Terms of Trade, any relevant Order Form and any relevant credit application constitute the entire agreement between the parties with respect to their subject matter and supersede all previous understandings, arrangements, agreements and communications, whether verbal or written, between the parties or their advisers with respect to that subject matter.
26.10 Confidentiality: Subject to these Terms of Trade, you must not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of FUJIFILM NZ or use any such confidential information for a purpose other than to perform your obligations under these Terms of Trade (unless FUJIFILM NZ has first given its written approval or the disclosure is to your professional advisers or is required by law). The obligations in this clause survive termination of this Agreement.
26.11 Jurisdiction: These Terms of Trade and each Contract are governed and must be construed in accordance with the laws of New Zealand. The parties submit to the exclusive jurisdiction of the Courts of New Zealand in respect of all matters or things arising out of these Terms of Trade or Contract.