Our Terms & Conditions of Trade
1.1 "Fagans" shall mean Fagans NZ Limited trading as Fagan’s Furniture, Beds & Flooring.
1.2 "Customer" shall mean any person or entity purchasing Goods and/or Services from Fagans.
1.3 "Goods" shall mean all goods supplied or to be supplied by Fagans to the Customer and shall include, without limitation, all goods of general description specified in any quote or invoice attached.
1.4 “Services" shall mean all services and advice provided or to be provided by Fagans to the Customer and shall include without limitation all contracting and maintenance services and all labour.
1.5 “Price” shall mean the cost of supplying the Goods and Services to the Customer, including without limitation all disbursements and labour charges but excluding the cost of any floor preparation (if applicable).
2. CONTRACT AND PRICE
2.1 Subject to clause 3, Fagans agrees to sell and the Customer agrees to buy the Goods and/or engage Fagans to provide Services selected at the Price.
2.2 The Price specified in any attached quote shall be valid for thirty (30) days from the date of the quote.
2.3 The parties agree that the Price specified in any quote attached is a best estimate only based on the information known by Fagans when the quote was issued and excludes, unless otherwise stated, the costs of floor preparation where applicable. In the event that the work required to be completed by Fagans is more difficult, takes longer, is not otherwise as anticipated when the quote was issued or involves floor preparation, the parties agree that the Price may be varied to take into account such factors.
2.4 Unless otherwise specified by Fagans, the Customer acknowledges that the Price will at all times be inclusive of GST and that the Customer shall pay the full Price including GST.
2.5 All Goods ordered are subject to the availability of materials and the capacity of Fagans to obtain or manufacture such Goods.
2.6 Fagans will use reasonable endeavors to source Goods to match the specifications supplied by the Customer.
3. CREDIT CHECKS
3.1 This contract is conditional upon Fagans being satisfied, in Fagans sole discretion, of the credit history of the Customer or any guarantor (Guarantor) of the Customer under clause 12.
3.2 In accordance with the Privacy Act 1993 the Customer and any Guarantor of the Customer hereby authorise Fagans to conduct all credit checks and searches of the Customer or Guarantor. The Customer and the Guarantor will provide all necessary written authorisations for such credit checks and searches as requested from time to time by Fagans.
4.1 Upon acceptance of this contract the Customer shall immediately pay to Fagans 50% of the Price as a deposit (Deposit) for the supply of the Goods and Services.
4.2 In the event that Fagans is not satisfied with the Customer’s or any Guarantor’s credit history in clause 3.1, Fagans may, in Fagan’s sole discretion, refuse to supply the Goods and Services and refund the Customer’s Deposit.
4.3 Fagans shall issue an invoice upon completing the supply of the Goods and Services which sets out the balance of the Price and additional charges such as the cost of floor preparation (if any) (Balance) required to be paid by the Customer.
4.4 Payment of the Balance must be satisfied within 7 days from the date of the invoice (Due Date).
4.5 Fagans, prior to supplying the Goods and Services may require payment of the full Price in advance or progress payments to be made at various stages during the supply. In the event that the Customer fails to meet any requirement, Fagans may refuse to commence or continue supply to the Customer.
4.6 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.1 Risk in any Goods and Services supplied by Fagans shall pass when the Goods and Services are delivered to the Customer and it shall be the Customer's obligation to insure the Goods and Services from that time.
6.1 This contract cannot be cancelled without the written approval of Fagans. In the event that Fagans accepts the cancellation of this contract, it shall be entitled to charge a reasonable fee for any work done or expenditure incurred on behalf of Fagans to the date of the cancellation in reliance on the contract.
6.2 Fagans may cancel this contract at any time by Fagans giving the Customer written notice. The Customer shall indemnify Fagans against all claims and loss of any kind whatsoever however caused or arising as a result of this clause brought by any person in connection with any cancellation by Fagans, its agents or employees in connection with the cancelled Goods and Services.
7.1 All Goods installed by Fagans are installed in accordance with the manufacturer’s instructions or standard industry practice and a manufacturer’s warranty applies where available.
8 CONSUMER LEGISLATION & LIABILITY
8.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and Services from Fagans for the purposes of a business in terms of section 2 and 43 of that Act
8.2 The Consumer Guarantees Act 1993, the Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Fagans which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Fagans, Fagans' liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
8.3 Except as otherwise required by law Fagans shall not be liable for:
8.3.1 any loss or damage of any kind whatsoever, arising from the supply of Goods and Services by Fagans to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by Fagans to the Customer; and
8.3.2 the Customer shall indemnify Fagans against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Fagans or otherwise, brought by any person in connection with any matter, act, omission, or error by Fagans, its agents or employees in connection with the Goods and Services.
9.1 The following shall constitute defaults by the Customer:
9.7.1 non payment of the Deposit;
9.7.2 non payment of the Balance by the Due Date;
9.7.3 the Customer intimates that it will not pay the Balance by the Due Date;
9.7.4 any Goods are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods;
9.7.5 any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to Fagans remains unpaid;
9.7.6 the Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer's assets;
9.7.7 a Court judgment is entered against the Customer and remains unsatisfied for seven (7) days; or
9.7.8 any material adverse change in the financial position of the Customer.
9.2 If the Customer has breached or is in breach of this contract, then without prejudice to Fagans’ other rights and remedies under this contract or at law, Fagans may (at Fagans’ sole discretion) take any one or more of the following actions:
(a) cancel this contract in accordance with clause 6.2;
(b) charge interest on any amount owing after the Due Date at the rate of 2.5% per month, calculated on a daily basis;
(c) refuse to supply Goods and Services to the Customer or only continue to supply Goods and Services on a cash on delivery or a cash up front basis;
(d) request an equitable mortgage over the Customer’s property in accordance with clause 11.1; or
(e) require that the Customer provide a Guarantor in accordance with clause 12.
9.3 The Customer indemnifies Fagans in respect of all liabilities, costs (including but not limited to full costs of any fees between solicitor and client or debt collection agency fees), charges, disbursements and other expenses incurred by Fagans, arising out of or incidental to a breach of this contract or default by the Customer including, without limitation, the enforcement by Fagans of any power, right or remedy conferred upon Fagans by law or by this contract.
10. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
10.1 Title in any Goods supplied by Fagans passes to the Customer only when the Customer has made payment in full for all Goods provided by Fagans and all other sums due to Fagans by the Customer under any contract whatsoever. Until all sums due to Fagans by the Customer have been paid in full, Fagans has a security interest in all Goods.
10.2 The Customer gives Fagans a security interest over:
10.2.1 all property that Fagans has performed Services on or to or in which Goods supplied or financed by Fagans have been attached or incorporated; and
10.2.2 all of the Customer’s present and after acquired personal property.
10.3 The Customer agrees to:
10.3.1 if required by Fagans, cooperate in good faith with Fagans to execute the documentation required to register any security interest in favour of Fagans on the Personal property Securities Register and protect Fagans’ interest in the Goods supplied; and
10.3.2 waive any right to receive a copy of the verification statement, pursuant to s148 of the Personal Property Securities Act 1999.
10.4 The Customer gives irrevocable authority to Fagans to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after default by the Customer or before default if Fagans believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are
incorporated. Fagans shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded.
11. MORTGAGE OVER PROPERTY
11.1 Notwithstanding clause 10, the Customer agrees to grant to Fagans immediately upon request a mortgage over any specified property, within the meaning of the Property Law Act 2007, that the Customer is the owner or registered proprietor of at the time the request is made, whether in whole or in part, as a joint tenant or as a tenant in common. The Customer acknowledges that as soon as a request is made, Fagans will acquire an equitable mortgage over the specified property in respect of which Fagans may lodge a caveat.
12. PERSONAL GUARANTEES
12.1 Where the Customer is a limited liability company, partnership or trust, the director(s), partner(s) or trustee(s) signing this contract, in consideration for Fagans agreeing to supply Goods and Services and grant credit to the Customer, also sign this contract in their personal capacity as Guarantors.
12.2 The Customer agrees that Fagans may at any time require this contract to be executed by one or more Guarantors of the Customer that are suitable in Fagans’ reasonable opinion. For the avoidance of doubt, suitability of a Guarantor may include, but is not limited to, examinations by Fagans of such factors as:
12.2.1 the proposed Guarantor’s then current financial position;
12.2.2 any assets then currently held by the proposed Guarantor;
12.2.3 the proposed Guarantor’s credit history; and
12.2.4 any other matter that Fagans considers relevant.
12.3 Any person, company or other entity executing this contact as a Guarantor jointly and severally undertakes as principal debtors to Fagans to pay any and all monies now or hereafter owed by the Customer to Fagans and indemnify Fagans against non-payment by the Customer. Any liability of a Guarantor shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The Guarantors and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due.
13. COLLECTION AND USE OF INFORMATION
13.1 The Customer authorises Fagans to collect, retain and use any information about the Customer, for the purpose of assessing the Customers credit history, enforcing any rights under this contract, or marketing any Goods and Services provided by Fagans to any other party.
13.2 The Customer authorises Fagans to disclose any information obtained to any person for the purposes set out in clause 3.1.
13.3 Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
14. INTELLECTUAL PROPERTY
14.1 All quotes, plans and other material supplied by Fagans contain intellectual property that cannot be copied or given to other parties without the written consent of Fagans. Fagans may, without prejudice to Fagans’ other rights in this contract or at law, charge a consultancy fee and the Customer agrees to pay the consultancy fee for misuse of this material.
15.1 In the event of any dispute between the parties in relation to this contract (but excluding the payment of the Price) the parties will first seek to resolve such dispute by promptly giving notice to the other party and in good faith endeavour to resolve the dispute. If the dispute remains unresolved the parties will first seek a resolution through the use of mediation or other informal method of resolution before pursuing arbitration or resolution through the Courts.
16.1 Fagans shall not be liable for delay or failure to perform its obligations directly or indirectly if the cause of the delay or failure is beyond Fagans’ control including "acts of god", wars or failure of third parties such as suppliers or subcontractors.
16.2 Failure by Fagans to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Fagans has under this contract.
16.3 If any provision of this contract 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.
16.4 These terms and conditions of trade shall be governed by the laws of New Zealand.
15.5 Reference to any Statutes includes any later amendments or changes to those Statutes.
16.6 Fagans may from time to time amend this contract by giving the Customer notice in writing.
I/we have read and agree to be bound by these terms and conditions of trade.
This execution section must be completed if Fagans has required the Customer provide one or more Guarantors under clause 12.2.
I/we acknowledge that pursuant to the requirement of Fagans, I/we are signing this contract as Guarantor(s) and have read and agree to be bound by the terms and
conditions of this contact.
Fagans Furniture, Beds & Homewares Whitianga is totally committed to the protection of your privacy.
The Fagans Furniture, Beds & Homewares Whitianga website does include links to other sites, but Fagans Furniture, Beds & Homewares Whitianga cannot be held responsible for the privacy activities or content of other sites. At some point in the future, we may contact you to inform you of new services and products available from Fagans Furniture, Beds & Homewares Whitianga. If you do not wish to receive these offers kindly email us at email@example.com and advise us that you do not wish to receive this information.
Fagans Furniture, Beds & Homewares Whitianga WILL NOT:
- Sell your name, address or other personal information to others.
- Share, sell or distribute ANY information with other companies, organisations or individuals, except as outlined above.
Activity within the Fagans Furniture, Beds & Homewares Whitianga website or completing a transaction via the web site will indicate acceptance of the terms and conditions.
All prices indicated are in NZ$ and include GST.
Information provided by this website is subject to change without notice. While we have made every effort to ensure accuracy, Fagans Furniture, Beds & Homewares Whitianga or its agents will not be liable for any inaccuracies in the information contained herein.
As web links are provided for your convenience only, Fagans Furniture, Beds & Homewares Whitianga cannot provide support for information contained in these external web-links. Product information and pricing located via external weblinks may not apply to products available for purchase in New Zealand nor at the pricing indicated.
If you have any questions about this privacy statement, the practices of this site, or your dealings with Fagans Furniture, Beds & Homewares Whitianga, you can contact us at: firstname.lastname@example.org
Fagans Furniture, Beds & Homewares - Whitianga August 2019