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D-Fa Ltd Terms And Conditions Effective January 19, 2009
1. D-FA LTD TERMS AND CONDITIONS FOR CUSTOMERS,
INCLUDING DEALERS
1.1. Welcome to D-fa Ltd: These terms and conditions are
intended to assist in maintaining the integrity of the
brand and relationships between D-fa Ltd (“D-fa”) and
our Customers, including Dealers.
1.2 Acceptance of terms and conditions: The terms and
conditions are the terms by which D-fa offers access to
you to purchase and/or re-sell our goods. By registering
as a Dealer or a Customer/Buyer and ordering product
from D-fa you accept these terms and conditions.
1.3 Amendment of terms and conditions: These terms and
conditions may be amended in whole or part by D-fa Ltd
from time to time. Amendments will be effective
immediately upon posting of the amended terms and
conditions on our website. Dealers and Customers/Buyers
are responsible for ensuring they are familiar with the
latest terms and conditions. These terms and conditions
were last updated on January 19, 2009.
1.4 Terminology: In these terms and conditions, the
following expressions have the meanings set out: a.
‘Buyer’ means a Customer purchasing for his or her own
use and not for resale or a Dealer where applicable. b.
‘Goods’ mean products that may be ordered from D-fa Ltd
through the order process. c. ‘Dealer’ means a
registered Dealer of D-fa® d. ‘We’, ‘us’, and ‘our’ are
references to D-fa Ltd. e. ‘You’ and ‘your’ are
references to the Dealer or a Customer/Buyer (you);
Buyers include Dealers where applicable.
2. OUR COMMITMENT TO YOU
2.1 We endeavor to make it easy for you to do business
with us. To fulfill this commitment we will always
attempt to: a. Put you in touch with the right person to
answer your questions. b. Respond to your needs
effectively and in a timely manner. c. Communicate with
you about new products or initiatives that may affect or
be of value to your business.
2.2 Please growl at us if you have any complaint about
our service. Our aim is to resolve any issues quickly
and fairly.
2.3 Whenever possible when providing goods to you we
promise to:
a. Provide goods with care and efficiency;
b. Provide goods which have a reasonable effective life
given reasonable use;
c. Provide the goods within a reasonable time frame, and
within agreed time frames;
d. Do our best to provide reliable goods subject to the
Limited Warranty below; and
e. Grant the Limited Warranty that the goods are free
from design or manufacturing defects and we will be
available to repair or replace D-fa® products found to
be of faulty design or manufacture. We are not
responsible for any incidental, consequential, special
or other damages and hereby disclaim such damages. Your
sole remedies are repair or replacement of defective
products and we have the right to agree that the goods
claimed are truly defective before making these remedies
available to you.
3. DEALER QUALIFICATIONS
3.1 D-fa Dealers: Must have a storefront or reasonable
on-line presence, maintain regular hours, a stock of
merchandise reasonable for the season and location, be
open to the public and be creditworthy.
3.2 To process a new dealer for a dealership: We must
have a completed Dealer Application/Agreement form.
3.3 Minimum Opening Order: For a new Dealer is US$1500.
3.4 Minimum Order: There is no minimum order; however
orders under US$150 will incur a US$10 fee.
3.5 Annual Minimum Purchase: A Dealer must maintain a
minimum annual purchase volume of US$2500 with D-fa Ltd
to remain an active Dealer.
4. PRICING, SHIPPING AND PAYMENT TERMS
4.1 Terms: The Buyer is to pay the prices and charges in
accordance with the terms specified herein or on the
order form accepted by us.
4.2 Standard Billing: For approved credit accounts terms
are net thirty (30) days. Payments must be bank dated on
or before the due date to be eligible for any discount
earned.
4.3 Past Due Accounts: Overdue invoices will bear
interest at the monthly rate of one and one half percent
(1.5%) on all overdue sums. In addition, accounts over
sixty (60) days unpaid may be assessed a 5% late fee on
all overdue sums. The charging of interest or late fees
does not constitute an extension of the due date for
payment or constitute a forbearance to seek recovery on
the part of the seller.
4.4 Credit limits: These limits are established for each
account based on financial information provided. Credit
limits may be re-evaluated upon request of Buyers. 4.5
Pricing: Products and pricing on future orders are
subject to change without prior notice.
4.6 Purchase Price, Shipping & Insurance: The purchase
price for the goods and any discounts applicable
thereto, are set forth in Exhibit A. All prices are FOB
the seaport of Lyttelton, New Zealand or the
Christchurch, New Zealand international airport (or
other location) as set forth in the relevant order
acceptance issued by us. This means that we will pay all
costs for transporting the goods from the place of
manufacture to the FOB seaport or international airport
named in the order acceptance and we will bear the risk
of loss for this portion of the supply chain only. You
will pay all costs, such as documentation costs,
freight, insurance, taxes, and tariffs and the risk of
loss from the named FOB seaport or airport to the
Delivery Point. When the goods are physically delivered
to the international carrier’s holding facility at the
seaport or airport, you shall bear the risk of loss
involved in all the supply chain steps occurring
thereafter as described above, including intra-seaport
or airport transportation and loading onto the ship or
airplane.
4.7 Priority Shipping and Allowances: Should you require
priority shipping, the cost difference will be added to
your invoice. Account specific shipping processes can be
accommodated in writing agreed to by us.
4.8 Insurance Claims: Claims for loss in transit will
not be recognized unless lodged within one month of
dispatch.
4.9 Refused Shipments: If Buyer refuses shipment
delivery on a valid and conforming order you agreed to
and we accepted, you remain liable to pay for the order
under this Agreement.
4.10 Order Adjustments and/or Cancellations: Adjustments
of more than twenty percent (20%) of an order will
cancel all special terms and revert to net thirty (30)
day payment terms. Substitutions must be made in writing
no later than thirty (30) days prior to ship date.
Orders that are cancelled after they have been processed
for shipping will be assessed a 20% restocking charge.
4.11 Returns: All returned merchandise must be
accompanied by a Return Authorization issued by us prior
to return. This RA number must be shown next to the
address label on the shipping container. Returns not
showing an RA number may be refused by us acting in our
sole discretion. All returns must be prepaid. A note of
explanation regarding the return merchandise, Buyer
name, phone number and desired action must accompany the
shipment.
5. TITLE AND PAYMENT
5.1 Title: Ownership of the goods shall not pass to the
Buyer until you have paid for them.
5.2 Payment Clearance: Receipt by us of any cheque or
other bill of exchange or any promissory note shall not
be deemed to be payment or conditional payment until the
same has been honored or cleared and until such time
shall not prejudice or affect our rights, powers or
remedies against you and/or the goods.
5.3 Failure to pay: If you fail to promptly pay for the
goods on the due date or become insolvent or file for
bankruptcy or similar proceedings are filed against you,
we may exercise all of our legal remedies to collect all
sums owing to us under this Agreement and/or recover the
goods from you or your agents.
5.4 Claim for damages, errors or deficiencies: You must
make any such claims to us in writing within seven (7)
days of the date of your receipt of the goods. All
returned goods must be in original condition and
received by us within fourteen (14) days of your
original receipt of them and must have the RA number
described above. The date and original invoice number
must be forwarded with all returns.
6. GENERAL CONDITIONS
6.1 No Waiver. If we do not exercise or enforce any
right available to us under these terms and conditions,
it does not constitute a waiver of those rights.
6.2 Partial Invalidity. If any provision of these terms
and conditions becomes or is held to be invalid,
unenforceable, or illegal for any reason, and in any
respect, that provision shall be removed from the
remaining terms and conditions, which shall continue in
full effect.
6.3 Force Majeure: The Seller shall not be liable for
inability to perform this contract if performance is
made impossible because of any contingency beyond our
reasonable control, such as a Government action, Act of
God or other ‘Force Majeure’ Event.
6.4 Seller Discretion: The Seller shall endeavor to meet
all the Buyer’s orders but the Buyer acknowledges that
all orders are accepted at the Seller’s discretion and
that the Buyer has no right to purchase goods under this
Agreement.
6.5 Law and Jurisdiction: We are a seller in New Zealand
and you are a Buyer in the United States or elsewhere.
We hereby agree that the law and jurisdiction that will
govern any disputes arising under this Agreement will be
the federal, state and local laws in, and the federal
courts where, the Buyer’s principal place of business is
located; provided that the Buyer has acted in full and
complete good faith in its dealings with us. Otherwise,
we will be entitled to assert our legal rights under the
laws of New Zealand and jurisdiction will lie in
Christchurch, New Zealand.
6.6 Intellectual Property: We own or are an authorized
licensee of all intellectual property rights in and
related to our products, including but not limited to,
copyrights, trademarks, trade secrets, and patents
(“Intellectual Property”). We hereby license our
Dealers to properly take authorized actions with respect
to the marketing and sales of our products and the
display and use of our logos and marketing and sales
materials in strict accordance with the rules of our
Dealer merchandising program. Dealers may not violate
this license by improperly adapting, reproducing,
copying, storing, distributing, printing, displaying,
performing, publishing, commercializing, selling or
creating derivative works from our Intellectual
Property.
6.7 Entire Agreement: These terms and conditions and
your orders as accepted by us supersede all previous
conditions, understandings, commitments, agreements and
representations whatsoever whether oral or written, and
constitute the entire agreement between us, relating to
the purchase and sale of our goods and the licensing of
our Intellectual Property related to the goods. In the
event of any conflict between this Agreement and an
accepted order, the latter shall prevail.
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