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Terms of Trade - Ferntech NZ Ltd
1. APPLICATION
(a) Ferntech NZ Limited ( Ferntech ) is an authorised New Zealand supplier of drones/UAVs, drone components and drone accessories ( Products ), and drone repair services and drone support services ( Services ).
(b) Unless otherwise agreed in writing by Ferntech, the following terms of trade ( Terms ) will apply to the supply of any Products or Services to the Customer ( Customer ) by Ferntech. The Customer acknowledges that the supply of all Products and Services by Ferntech will be subject to these Terms, whether or not they have been signed by the Customer.
(c) If there is any inconsistency between a provision of these Terms and any provision in any other written agreement between the Customer and Ferntech, the provisions will apply in the following descending order of priority:
(i) the provisions in any written agreement between the Customer and Ferntech; and
(ii) these Terms,
provided that these Terms will prevail over any other terms and conditions stipulated by the Customer or included as part of any of the Customer's documentation.
(d) Ferntech may amend these Terms at any time. The amended Terms will apply in respect of any Order (as that term is defined below) accepted by Ferntech for the supply of any Products or Services to the Customer following the date the amended Terms are available on Ferntech’s website.
2. ORDERS
(a) The Customer will place orders with Ferntech for Products or Services in accordance with any process and minimum order quantities specified by Ferntech from time to time ( Order ).
(b) Each Order will constitute an offer to purchase the Products or Services by the Customer which will only be accepted by Ferntech by written confirmation of the Order to the Customer or the performance by Ferntech of the Order.
(c) Ferntech may in relation to any Order, accept the Order or decline to accept the Order in whole or in part, in its sole discretion. Notwithstanding acceptance of an Order, Ferntech may cancel or refuse to supply any Order at any time in its sole discretion.
3. PRICE AND PAYMENT
(a) The price payable for any Products or Services supplied by Ferntech to the Customer ( Price ) will be:
(i) the price agreed between the parties in writing; or
(ii) in the absence of any agreement between the parties, Ferntech's standard prices applicable for the Products or Services at the time the relevant Order is accepted by Ferntech.
(b) The Price will be payable by the Customer on the date the Order is made ( Due Date ) and may be paid by any payment method accepted by Ferntech.
(c) Any Price submitted by Ferntech to the Customer is subject to alteration by Ferntech, in its sole discretion, at any time prior to delivery of the Products or performance of the Services.
(d) In addition, Ferntech reserves the right to alter the Price agreed with any Customer by written notice to the Customer to reflect any increase in the costs incurred by Ferntech in supplying the Products or Services to the Customer that is beyond the reasonable control of Ferntech (including without limitation any taxes, foreign exchange fluctuations, duties and the provision of any laws enacted after the date of acceptance of any Order for Products or Services by Ferntech).
(e) Ferntech will notify the Customer of any alteration to the Price prior to delivery of the Products or performance of the Services. If the Customer does not wish to proceed with the Order at the altered Price, the Customer may cancel the Order by written notice to Ferntech at any time prior to the Products being dispatched for delivery or the Services being performed.
(f) If the Customer fails to pay the Price to Ferntech on or before the Due Date, Ferntech will be entitled to charge interest on any amount overdue for payment by the Customer from the Due Date until the date payment of the Price is received in full, together with any actual costs (legal or otherwise) incurred by Ferntech for the enforcement of payment of such overdue amounts. Interest will be charged on any overdue amount at a rate equal to the Reserve Bank of New Zealand Official Cash Rate (OCR) + 4% per annum, calculated daily on a simple interest basis.
(g) Unless expressly stated in writing, all amounts quoted by Ferntech will be deemed to exclude all freight or delivery charges, which will be payable by the Customer at the same time as the Price and in addition to the Price.
4. DELIVERY AND SUPPLY
(a) The Products or Services will not be delivered or performed until the Price has been paid in full.
(b) Unless otherwise agreed in writing, delivery of any Products or Services by Ferntech will be deemed to take place when the Products (or products treated by the Services) are made available for collection by the Customer from Ferntech's premises or otherwise delivered to the location agreed between the parties ( Delivery ).
(c) If Ferntech agrees to arrange for the transportation of any Products (or products treated by the Services) from Ferntech's premises to any nominated delivery address on behalf of the Customer:
(i) the transportation of such Products (or products treated by the Services) will be at the Customer's expense;
(ii) the Products (or products treated by the Services) will be properly and suitably packed by Ferntech and in such manner as to reach the intended destination in good condition under normal conditions of transport;
(iii) Ferntech will act as the agent for and on behalf of the Customer and will not be liable for, or responsible for, any damage that occurs during or after Delivery;
(iv) Ferntech may deliver the Products (or products treated by the Services) by separate instalments; and
(v) Ferntech will not be liable to the Customer for any loss of revenue, loss of profits or any other indirect or consequential losses or liabilities incurred by the Customer on account of any Products (or products treated by the Services) not being delivered on any specified date. The delivery date on any quote or Order will be indicative only. Ferntech will have no responsibility for any delivery delays except where any such delays are caused by reasons within Ferntech’s reasonable control, and the Customer will be required to accept delivery of the Products (or products treated by the Services) when tendered for delivery.
(d) The Customer will make all necessary arrangements to take delivery of the Products (or products treated by the Services) whenever they are tendered for delivery. If the Customer is unable to take delivery of the Products (or products treated by the Services) at the time of delivery, or otherwise requested by Ferntech to delay delivery, the Customer will pay to Ferntech any reasonable costs incurred by Ferntech in relation to the storage and redelivery of the Products (or products treated by the Services).
(e) Ferntech will complete all Services, or arrange for its agents to complete the Services on its behalf, as soon as is reasonably possible. The Customer acknowledges that certain Services must be completed overseas and that such Services may take around 12 weeks to complete.
5. RISK AND TITLE
(a) Unless otherwise agreed in writing, all risk of loss, damage, deterioration or destruction to the Products will pass to the Customer on Delivery. Title to any Products will not pass to the Customer until Ferntech has received payment in full in cleared funds for all Products and Services supplied to the Customer.
(b) Until title to the Products passes to the Customer under clause 5(a), the Customer will:
(i) hold the Products as a bailee only;
(ii) clearly designate the Products as Ferntech's property and store the Products in such a way that they are identified as Ferntech's property; and
(iii) maintain the Products in good order and condition and preserve the Products in their present form.
(c) Without prejudice to Ferntech's other rights and remedies, Ferntech will be entitled to retake possession of any Products at any time prior to payment in full being received for those Products. The Customer grants Ferntech an irrevocable right and authority to enter onto any place where such Products are situated, or thought to be situated at any time and to take and resell the Products and to retain the proceeds from such sale. Any shortfall arising from such sale will be a debt due and owing to Ferntech by the Customer.
(d) In relation to products treated by the Services, the Customer acknowledges Ferntech has a repairer’s lien over those products until payment of the Price in full is received by Ferntech. If payment is not received within 30 days of completion of the Services, Ferntech may sell the products treated by the Services in payment or part-payment of the Price (and to the extent the Price is not still satisfied, it will remain due and owing by the Customer).
6. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
(a) The Customer acknowledges that the retention of title in these Terms gives rise to a security interest (as defined under the PPSA) in all present and after acquired Products and products treated by the Services, and all proceeds of such Products and products treated by the Services, supplied by Ferntech to the Customer under these Terms to secure the Customer's performance of its obligations under these Terms.
(b) The Customer undertakes to:
(i) promptly do all things, execute all documents and/or provide any information which Ferntech may reasonably require to enable Ferntech to perfect and maintain the perfection of its security interest (including by registering a financing statement);
(ii) give Ferntech not less than 14 days prior written notice of any proposed change in its name and/or any other change of its details; and
(iii) immediately on request by Ferntech (and at the Customer's expense) obtain from any third party such agreements and waivers of any security interest that third party has in respect of the Products to ensure that at all times Ferntech has a first ranking security interest in the Products.
(c) The Customer waives its rights to receive a copy of any verification statements under the PPSA and agrees that as between Ferntech and the Customer:
(i) the Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the PPSA; and
(ii) where Ferntech has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
7. CLAIMS IN RELATION TO PRODUCTS
(a) Where the Customer is a Consumer as defined in section 2 of the Consumer Guarantees Act 1993 ( Act ), these conditions will not be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application of all or any of the provisions of the Act which by law cannot be excluded, restricted or modified and which applies to the sale of Products or Services to the Customer by Ferntech.
(b) Any claims by the Customer that any Products or Services supplied do not correspond to the relevant quote, or that any Products or Services are defective, must be made in writing to Ferntech within a reasonable period of time of Delivery of the Products or Services. Where the Customer is a Consumer under the Act any claim should be made within 60 days of Delivery of the Products or Services. Where the Customer is not a Consumer under the Act, any claim must be made within 5 days of Delivery of the Product or Services. Any claim must be in writing and include the order number, a detailed description of the fault and the Customer’s contact details.
(c) Where the Customer is not a Consumer under the Act, if no claim is received by Ferntech within 5 days of Delivery the Customer will be deemed to have irrevocably accepted the Products or Services.
(d) If a claim is made by the Customer in accordance with clause 7(b) above, the Customer will afford Ferntech a reasonable opportunity to inspect the Products or Services and to investigate the reason for any claim. Subject to verification by Ferntech, Ferntech may in its sole discretion either repair or replace any Products provided to the Customer, re-perform the Services, or provide a refund of the Price paid by the Customer in relation to the Products or Services.
8. RETURNS
(a) In relation to Products or Services acquired by the Customer in any physical store or location where Ferntech is selling the Products and except in accordance with the process set out in clause 7 above, the Customer acknowledges that it may not return any Products (or products treated by the Services) to Ferntech, without Ferntech's prior written consent.
(b) In relation to Products acquired by the Customer in the online store where Ferntech is selling the Products, Ferntech may agree to accept returned Products within 14 days of purchase provided the Products are unused and in original packaging.
(c) The Customer acknowledges that Ferntech may, as a condition of it agreeing to accept any returned Products (or products treated by the Services) stipulate any further terms and conditions that must be met in relation to the returned Products (or products treated by the Services) and any handling or restocking fees that may apply.
9. NO WARRANTIES BY FERNTECH
(a) To the extent reasonably possible, Ferntech will pass on all manufacturer’s warranties in relation to any Products to the Customer.
(b) Ferntech’s warranty claims process, including the time taken to process warranty claims, aligns with that of the manufacturer of the Products. For all Products manufactured by DJI, the process is as follows:
(i) Customer notifies Ferntech of an identified issue with a part, component or system of a Product and provides a description and a short video of the issues by email to support@ferntech.co.nz.
(ii) Ferntech submits the issue information provided to the manufacturer on the Customer’s behalf.
(iii) The manufacturer accepts or rejects the warranty claim based on the evidence presented.
(iv) Where the Customer is not a Consumer under the Act, if Products are not working on Delivery (Dead on Arrival or DOA), they must be returned to Ferntech within 5 days of Delivery. If Products are approved by the manufacturer for DOA replacement, Ferntech may replace the Product from its local stock-in-trade. Ferntech reserves the right to refuse a replacement from its stock-in-trade instead arrange a replacement Product to be supplied by the manufacturer.
(v) If the issue is caused by impact or a crash-landing, the Product and all flight logs may need to be returned to the manufacturer for analysis.
(vi) If the manufacturer accepts the warranty claim, the Product will be repaired by Ferntech in-house or by the manufacturer and returned to the Customer.
(vii) If the manufacturer rejects the warranty claim, Ferntech has no further obligation to replace or repair the Products. Ferntech can offer its Drone Repair Services at the Customer’s cost.
(viii) The Customer acknowledges that if it chooses to use any application not made by the manufacturer of the Products, the manufacturer may not accept any warranty claim for incidents that occur while using the application.
(ix) Ferntech provides no guarantee on the turnaround times for any warranty or DOA claim, as the process is managed by overseas manufacturers.
(c) If the Customer submits a drone or other item for repair, Ferntech may send the item to the Product Manufacturer’s Repair Centre. Ferntech assumes no liability, responsibility or ownership at any point of this process and is acting solely as an intermediary between the Customer and the manufacturer. Ferntech is not affiliated with the Product Manufacturer’s Repair Centre in any way. Ferntech’s involvement in sending items for repair at the Product Manufacturer’s Repair Centre is distinct to the Services Ferntech provides.
(d) Subject to clauses 9(a)-(c) and clause 7(a), except as expressly set out in writing by Ferntech in respect of any Products or Services, Ferntech makes no representation, warranty or undertaking (whether express or implied) in relation to any Products or Services (including any warranty as to the merchantability, quality, or condition of the Products or Services, compliance with the description of the Products or Services, the suitability or fitness of the Products (or products treated by the Services) for the Customer's purposes, or the use of the Products). To the maximum extent permitted by law, all such representations, warranties and undertakings are negatived and excluded.
(e) Where the Customer is acquiring, or holds itself out as acquiring, any Products or Services for the purposes of a business in terms of section 43(2) of the Act the Customer will not assert or attempt to assert any rights or claims against Ferntech under the provisions of the Act.
(f) The Customer acknowledges that it is not relying on Ferntech's skill or judgment as to the suitability or otherwise of the Products or Services for any purpose.
(g) Any information provided on Ferntech’s website is for general or education purposes only.
10. SANCTIONS, EXPORT CONTROLS AND ON-SALE
(a) The Customer represents and warrants that at the time of entering into any Order and throughout the duration of any agreement between the Customer and Ferntech, neither the Customer, nor its ultimate beneficial owner(s), directors, officers or members of its governing bodies, are a Sanctioned Person.
(b) The Customer undertakes that no Products acquired from Ferntech or Services received through Ferntech will be directly or indirectly supplied, on-sold, transferred or made available to, or used for the benefit of, any Sanctioned Person or any individual or entity located or ordinarily resident in a Sanctioned Country, without the prior written consent of Ferntech.
(c) The Customer further warrants that it will not, and will not permit any third party to, use the Products for any military or weapons-related purpose, and that it will take reasonable steps to ensure that the Products are not used for any such purpose.
(d) The Customer shall comply with all applicable Sanctions with respect to any Products or Services acquired from Ferntech and shall refrain from acting in any way that would cause Ferntech to violate any Sanctions.
(e) Ferntech shall be entitled to cancel, suspend or refuse to accept any Order, and to suspend or cease the provision of any Products or Services, with immediate effect and without liability, to the extent that performance of Ferntech's obligations would, in Ferntech's reasonable opinion, cause Ferntech to violate any Sanctions or be a breach of clause 10(c).
(f) The Customer shall indemnify Ferntech against all loss, damage, liability, cost or expense suffered or incurred by Ferntech arising from or in connection with any breach of this clause 10 by the Customer (whether directly or indirectly), including any investigation, enforcement action or penalty relating to such breach.
(g) Without limiting Ferntech’s rights under clause 10(e), the Customer agrees to provide Ferntech with all information Ferntech requires to be satisfied that that the Customer has not or will not be in breach of this clause 10 and agrees that any Order or Service may be delayed by Ferntech until it has receives satisfactory information (determined at Ferntech’s discretion).
(h) For the purposes of this clause:
(i) Sanctioned Person means any individual or entity that: is designated under, or otherwise subject to, Sanctions; operates, or is organised or ordinarily resident in, a Sanctioned Country (meaning any country or territory that is subject to, or whose government is subject to, a regime of Sanctions prohibiting or restricting relations with those countries, territories or governments); or is 50% or more owned or controlled by, or acts for, at the direction or on behalf of, any of the foregoing parties set out in (i) or (ii).
(ii) Sanctions means any economic or financial sanctions, or trade embargoes administered or enforced by a Sanctions Authority including (without limitation), export control laws or requirements under the Customs and Excise Act 2018 and the New Zealand Strategic Goods List, or sanctions issued under the United Nations Act 1946 or Russia Sanctions Act 2022.
(iii) Sanctions Authority means New Zealand, the United Kingdom, the United States of America, the European Union, the United Nations (and any other governmental authority with jurisdiction over a party or any part of its business or operations), and in each case their respective governmental, judicial or regulatory institutions, agencies, departments and authorities, including (without limitation) the UN Security Council, the United States Department of the Treasury Office of Foreign Assets Control, the New Zealand Police and Financial Intelligence Unit, the Ministry of Foreign Affairs and Trade, and New Zealand Trade and Enterprise.
11. INTELLECTUAL PROPERTY
(a) The Customer acknowledges that, unless expressly agreed in writing and signed to the contrary, the Customer has no intellectual property rights (whether registered or unregistered) relating to the Products or Services ( Intellectual Property ) nor will the Customer have any right or title to any actual or possible development or improvement in the Products or Services or the intellectual property ( Development IP ).
(b) The Customer acknowledges that it will not at any time acquire any right, title or interest in any kind in the Intellectual Property or the Development IP.
12. INDEMNITY AND LIMITATION OF LIABILITY
(a) The Customer will indemnify Ferntech at all times against any loss, damage or costs suffered or incurred by Ferntech as a direct or indirect result of a breach by the Customer of any of its obligations under these Terms, including without limitation:
(i) all dishonour fees, debt collection, collection agency costs and legal costs on a solicitor/client basis); and
(ii) as provided under clause 10,
except to the extent any such loss, damage or costs are directly caused by the Ferntech’s negligent act or omission, fraud, wilful misconduct or breach of any of its obligations under these Terms.
(b) Notwithstanding any contrary provision contained in these Terms or elsewhere, to the extent permitted by law the maximum liability of Ferntech to the Customer in relation to any Products or Services will be limited at Ferntech's sole option to:
(i) in the case of Products, replace the Products or supply equivalent Products;
(ii) in the case of Services, re-perform the Services; or
(iii) refund of any amount actually paid by the Customer for the Products or Services.
(c) Nothing expressed or implied in these Terms will confer any liability on Ferntech for any consequential, indirect or special loss, damage, cost or expense suffered or incurred by the Customer as a direct or indirect result of:
(i) a breach by Ferntech of any of its obligations under these Terms; or
(ii) any use of the Products (or products treated by the Services) otherwise than in accordance with any relevant specifications notified by Ferntech to the Customer.
13. CANCELLATION OR SUSPENSION OF CONTRACT
(a) Notwithstanding any other provision set out in these Terms, Ferntech reserves the right to refuse to accept any Order from the Customer and to cancel or suspend the provision of any Products or Services to the Customer in its sole discretion at any time and without liability, including where Ferntech reasonably suspects non-compliance with clause 10. If Ferntech suspends the provision of any Products or Services under an Order for more than two months, the Customer may cancel the Order and receive a refund.
(b) The Customer acknowledges that upon acceptance of any Order for the supply of Products or Services by Ferntech, the Customer will be bound by that Order and will not be entitled to terminate, rescind or cancel any Order placed with Ferntech, without Ferntech's prior written consent.
14. USE OF INFORMATION
The Customer acknowledges that:
(a) any information provided by the Customer to Ferntech may be collected and used by Ferntech for any purpose connected with Ferntech's business including (but not limited to) direct marketing, debt collection and credit reporting or assessment;
(b) Ferntech is authorised to carry out credit checks in relation to the Customer, and where the Customer is a company, about the directors of the Customer and to provide such information to any external agency or party for credit information and assessment purposes necessary for those purposes; and
(c) Ferntech and any external agency or party may retain and/or use such information for as long as they see fit.
15. GENERAL
(a) These Terms are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these Terms.
(b) Ferntech and the Customer each acknowledge that these Terms, and any agreement agreed in writing between the parties which expressly refers to these Terms, contain the entire understanding and agreement between them and that there have been no representations made by either party to the other except as expressed in these Terms.
(c) If any provision of these Terms is found to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected.
(d) The Customer may not assign, subcontract or hold on trust for any third party any of its rights under these Terms without the prior written consent of Ferntech. Any change of control of the Customer will be deemed to be an assignment for the purposes of this clause.
(e) Where two or more persons or entities are listed as being the Customer, both parties will be jointly and severally liable for the payment of all amounts owing by the Customer to Ferntech.
(f) Ferntech will not be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm, epidemic, pandemic or any other event beyond the reasonable control of Ferntech.
By purchasing online or in store with Ferntech NZ Ltd the terms of trade are accepted and agreed by the customer.
