Terms of Trade
1. Definitions
1.1 “Business Day” means “Business Day” means any day Monday through Friday between the hours of 9.00 am and 5.00 pm excluding public holidays.
“CGA” means the New Zealand Client Guarantees Act 1993
“Client” means the person, firm, company or entity purchasing goods as specified in any invoice, document or order, and includes partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, invitees, agents, interns and employees of the Client, and if there is more than one Client is a reference to each Client jointly and severally.
“FHS” means Forkhoist Solutions Limited, its successors and assigns or any person acting on behalf of and with the authority of FHS.
“Goods” means all Goods sold or to be sold or supplied by FHS to the Client at the Clients request from time to time.
“GST” means Goods and Services Tax imposed under the Goods and Services Tax Act 1985.
“Invoice” includes any written quotation and other contractual document issued by FHS.
“Price” means the price payable for the Goods as agreed between FHS and the Client.
“Related Company” means any entity that, directly or indirectly, is in control of or is controlled by FHS.
“Terms” means these terms and conditions.
2. Acceptance of Terms
2.1 These Terms apply to any order for Goods placed by a Client.
2.2 The Client is deemed to have exclusively accepted and be immediately bound by these Terms upon placing an order on FHS’s website for Goods.
2.3 These Terms may only be amended with FHS’s prior consent in writing and prevail to the extent of any inconsistency with any other document or agreement between the Client and FHS.
2.4 The Client acknowledges and accepts that FHS, at its discretion, reserves the right not to supply Goods if, for any reason, including but not limited to, where the Goods are not or cease to be available, account disputes or conditions placed on FHS by its suppliers. FHS will not be liable to the Client for any loss or damage the Client suffers due to FHS exercising its rights under this clause.
2.5 Where there is more than one Client that has entered into the Terms, the Clients are jointly and severally liable for all payments and obligations.
2.6 The Goods are as described in the relevant material.
3. Orders
3.1 Any Price quoted, published or otherwise provided by FHS is an invitation only and does not constitute a contractual offer.
3.2 Any order for Goods received from a Client shall not be binding on FHS until it has been accepted by FHS in writing or the act of dispatching the ordered Goods to the Client.
3.3 Where Goods are sold by description or by reference to a sample, FHS will use its best endeavours to supply Goods complying with such description or sample, but FHS shall not be liable in anyway whatsoever for any variation in the Goods.
3.4 The Client shall be responsible for ensuring the accuracy of any order and of any applicable specifications. The quantity, quality and description of, and any specification for Goods, shall be those setout in the Client’s order (if accepted by FHS), provided that FHS may make changes to specifications which do not, in FHS’s sole and unfettered discretion, materially affect the quality or performance of Goods.
4. Price and Payment
4.1 In principle, the Price for any Goods will be that price listed for that Good or those particular Goods on FHS’s website, on the FHS’s quote or pricing lists.
4.2 Notwithstanding clause 4.1, FHS may vary the Price after receipt of an order from a Client, at its discretion for any reason, including but not limited to:
(a) Any mistake on the part of FHS in publishing a Price on FHS’s website and relevant material;
(b) Any increase in costs charged to FHS by its suppliers;
(c) Any increase in taxes, duties or other charges imposed by any government body in relation to the Goods;
(d) Any change to the Goods requested by the Client;
(e) Any increase as a consequence of variations in foreign currency rates of exchange;
(f) Any increase in the cost of freight and insurance charges;
(g) Any inaccurate specifications provided by the Client;
(h) As a result of increases to FHS in the cost of materials and/or labour.
4.3 In the event a Client has placed an order for Goods which are subject to a variation in Price under clause 4.2, then FHS will notify the Client in writing of the variation in Price. The Client may then elect whether to confirm or cancel the order. In the event the Client elects to cancel the order FHS will refund any money already received from the Client in relation to that order in full.
4.4 In the case of cancellation under clause 4.3, the sole extent of FHS’s liability to the Client will be the amount of money already paid by that Client in relation to that cancelled order. FHS will not otherwise be liable for any loss or damage whatsoever arising from that cancellation.
4.5 The Client will pay to FHS a deposit equal to 50% of the total Price. The deposit shall be payable to FHS immediately upon the Client ordering the Goods. The balance of the Price shall be due within 5 Business Days of the Client being in receipt of the Goods.
4.6 Payment may be made by electric/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to in writing prior to payment from Client to FHS.
4.7 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to FHS an amount equal to any GST, FHS must pay for any supply by FHS under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price, except where they are expressly included in the Price.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that the carrier takes possession of the Goods at FHS’s address.
5.2 At FHS’s sole discretion the cost of delivery of Goods may be either included in the Price or be in addition to the Price. In any event the Client is responsible for the cost of delivery and shall pay such to FHS on demand (time being of the essence).
5.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then FHS will be entitled, at its discretion, to charge a reasonable fee for redelivery and/or storage.
5.4 The Client acknowledges that it can take up to 8weeks for the Goods to shipped to the Client whilst the Goods are manufactured. Such is an indicative time period only.
5.5 The Client must still accept delivery of the Goods even if late and FHS will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
5.6 Backorders will be shipped as soon as they are available and shipping is available.
6. Risk
6.1 The risk of any loss or damage to or deterioration of goods due to any cause whatsoever including damage or loss in transit shall be borne by the Client as from the time the goods leave FHS’ premises.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, FHS is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms by FHS is sufficient evidence of FHS’s rights to receive the insurance proceeds without the need for any person dealing with FHS to make further enquiries.
7. Title to Goods and Uncollected Goods
7.1 FHS and the Client agree that ownership of the Goods shall not pass until the Client has paid FHS all amounts owing to FHS and the Client has met all of its other obligations to FHS.
7.2 Receipt by FHS will not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
7.3 It is further agreed that:
(a) Until ownership of the Goods passes to the Client in accordance with clause 7.1, the Client is only a bailee of the Goods and must immediately return the Goods to FHS on request.
(b) The Client holds the benefit of the Client’s insurance of the Goods on trust for FHS and shall pay to FHS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) The Client shall not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for FHS and must pay or deliver the proceeds to FHS within 2 business days.
(d) The Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of FHS must sell, dispose of or return the resulting product to FHS as FHS directs.
(e) Until ownership of the Goods passes to the Client the Client irrevocably authorises FHS enter any premises where FHS believes the Goods are kept and recover possession of the Goods.
(f) Until ownership of the Goods passes to the Client FHS may recover possession of any Goods in transit whether or not delivery has occurred.
(g) The Client must not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of FHS.
(h) FHS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
8. Securities and Personal Properties Securities Act 1999 (PPSA)
8.1 In this clause financing statement, financing change statement, security agreement and security interest all have the meaning given to them by the PPSA.
8.2 The Client agrees that the retention of title in clause 7.1 of these Terms creates a Purchase Money Security Interest (having the meaning given to that term in the PPSA) in all present and after acquired Goods (and their proceeds) as security for payment of the purchase price for the Goods until such amount is paid in full.
8.3 The Client undertakes to promptly do all things, execute all documents and/or provide any information which FHS may reasonably require to enable FHS to perfect and maintain the perfection of its security interests (including by registration of a financing statement).
8.4 Each security interest created under these Terms is a continuing security, notwithstanding any intermediate payments or settlements of accounts or anything else and is in addition to, and is not to be merged with any other security or guarantee (present or future) expressed or intended to be security for any secured indebtedness or any other obligations owing by the Client to FHS.
8.5 The Client waives its rights under the PPSA to receive a copy of any verification statement, financing statement or financing change statement (as those terms are defined in the PPSA) and agrees that:
(a) as between FHS and the Client, the Client will have no rights under (or by reference to)sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131,132, 133, 134 and 148 of the PPSA;
(b) to the extent permitted by law these Terms exclude any other provisions of the PPSA which may be excluded in FHS’s discretion and which would otherwise confer rights on the Client; and
(c) where FHS’s has rights in addition to Part 9 of the PPSA, those rights will continue to apply.
8.6 The Client acknowledges that it has received value as at the date of first delivery of the Goods and that FHS has not agreed to postpone the time for attachment of the security interest granted to FHS under these Terms.
8.7 The Client must not:
(a) change its name, address or contact details without providing FHS 15 Business Days prior written notice (which may be by email the address of an authorised FHS representative);
(b) give to FHS a written demand, or allow any other person to give FHS a written demand requiring a financing change statement to be registered; or
(c) lodge a change demand or allow any other person to lodge a change demand, in each case in relation to a financing statement registered by FHS under the PPSA.
8.8 The Client will, upon demand, pay all FHS’s expenses and legal costs (on a solicitor-client basis) in relation to or in connection with the registration, maintenance and enforcement of FHS’s security interest.
8.9 FHS does not (and will not be deemed to)undertake any of the Client’s obligations in respect of the secured property by virtue of these Terms.
9. Warranties and Returns
9.1 The Goods are subject to a warranty period of one year from receipt of the Goods.
9.2 FHS may in its absolute discretion accept non-defective Goods for return in which case FHS may require the Client to pay handling fee equal to the cost to FHS of inspecting, refurbishing and restocking the returned item plus any freight costs.
9.3 Notwithstanding anything contained in this clause if FHS is required by a law to accept a return then FHS will only accept a return on the conditions imposed by that law.
10. Product Disclaimer
10.1 FHS recommends that the Goods are checked at least daily to ensure that the laser has not been knocked out of alignment and that the laser line is shining along the forks of the forklift in accordance with the installation guide.
10.2 The Client acknowledges that the Goods are only to be used as a guide for driver accuracy, and FHS shall not be liable for any operational error by the Client.
10.3 For the avoidance of doubt, FHS reiterates that the Goods are a guide only and the Client must still take care and exercise caution when using the Goods.
10.4 The Client agrees that their use or inability to use the Goods is at their sole risk. In no case shall FHS, its directors, officers, employees, affiliate, agents, contractors or service providers be liable for any loss or claim, direct or indirect, incidental, punitive, special or consequential damages of any kind including without limitation lost profits, lost revenue, lost savings, lost data, replacement costs or similar damages whether based in contract, tort(including but not limited to negligence), strict liability or otherwise arising from the Client’s use of the Goods.
11. Default
11.1 Where the Client has not paid the Price in accordance with these Terms or is otherwise in breach of these Terms, FHS reserves the right (in its sole and unfettered discretion) to move the Goods offsite for storage at the Client’s cost.
11.2 Any and all costs associated with this are the responsibility of the Client and may include transport to/from offsite storage, admin fees, handling fees, legal fees (on a solicitor to client basis) and daily storage costs. Such shall be paid, together with all other outstanding payments, by the Client to FHS prior to the Goods being released to the Client.
11.3 Interest on overdue payments will accrue on a daily basis from the date when payment becomes due, until the date of payment, at a rate of 14% per annum.
11.4 Further to any other rights or remedies FHS may have under these Terms, if a Client has made payment to FHS, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any and all other costs incurred by FHS under this clause including but not limited to legal costs on a solicitor to client basis.
11.5 Without prejudice to FHS’s other remedies at law FHS shall be entitled to cancel all or any part of any order which remains unfulfilled and all amounts owing to FHS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to FHS becomes overdue, or in FHS’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by FHS;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
12. Cancellation
12.1 FHS may cancel any contract to which these Terms apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice FHS must repay to the Client any money paid by the Client for the Goods. FHS shall not be liable for any loss or damage whatsoever arising from such cancellation.
12.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether director indirect) by FHS as a direct result of the cancellation (including, but not limited to, any loss of profits).
12.3 Cancellation of orders for Goods made to the Client’s specifications, will not be accepted once production has commenced.
13. Claims
13.1 Any claim by the Client must be made in writing and may be delivered, hand delivered or emailed as soon as practicable after discovery of the problem by the Client and in any event no later than 3 Business Days after delivery of the Goods. The Client must supply a sample, if requested, and information to the extent FHS can identify the product, batch number (if applicable) and date of manufacture.
13.2 FHS has the right at any time within 15 Business Days after receipt of the claim to inspect the relevant goods. If the Client disposes of any of the goods within the 15 Business Day period, except with the written consent of FHS, all claims in respect of the Goods disposed of and are deemed to have been waived by the Client.
14. Consumer Guarantees Act 1993 (CGA)
14.1 The CGA is legislation that guarantees the rights of both the seller and Client for Goods sold. In the unlikely event that a Good the Client has purchased from FHS is or becomes faulty, FHS is committed to meeting its obligations (where applicable) under the CGA, however, the Client acknowledges that the CGA or any equivalent Client protection legislation will not apply where the Client purchases any Goods for the purposes of a commercial, resale or trade use.
15. Privacy
15.1 FHS privacy statement can be found on our website