Terms & Conditions of Use
Thank you for visiting our website at Ficeda (“Ficeda Website”). Please take the time to read our website and Ficeda terms and conditions.
References to “business day” in these terms and conditions mean any day that is not a Saturday, Sunday or a statutory public holiday in Australia.
- YOUR ACCEPTANCE
- FICEDA WEBSITE
- WEBSITE ACCESS
Ficeda hereby grants you permission to view, display, and download a single copy of the material on the Ficeda Website, provided that: (i) your use of the Ficeda Website as permitted is solely for your personal, non-commercial use; (ii) you will not copy, republish or rebroadcast any part of the Ficeda Website in any medium, other than as expressly permitted herein, without Ficeda's prior written authorisation; (iii) you will not alter or modify any part of the Ficeda Website other than as may be reasonably necessary to use the Fiecda Website for its intended purpose; and (iv) you will otherwise comply with these terms and conditions. This permission shall terminate automatically without notice if you breach any part of these terms and conditions. Upon termination, you must immediately destroy any downloaded and printed copies of the Ficeda Website or any portions thereof.
The original content of the Ficeda Website, including without limitation the text, software, graphics, photos, and images (“Content”), are owned by or licensed to Ficeda and subject to copyright and other intellectual property rights under the Copyright Act 1968 (Cth), foreign laws, and international conventions. Ficeda reserves all rights not expressly granted in and to the Ficeda Website and the Content. You must not infringe on Ficeda’s copyright and, other than as expressly permitted, you may not engage in the unauthorised use, copying, modifying, communication of or distribution of any of the Content. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein, failure to do so constitutes a breach of these terms and conditions. Unless the aforementioned notices are retained, you may not otherwise reproduce, display, publicly perform, or distribute the Content in any way for any public or commercial purpose.
Certain names, logos and/or slogans contained in the Website, including all Ficeda logos and the marks "Ficeda" are the trademarks and service marks of Ficeda and/or its parent corporation and subject to the trademark rights of Ficeda and its parent corporation respectively. Further, certain names, logos and/or slogans contained in the Website belong to third-party suppliers. All such marks may not be used without the express written authorisation from their respective owners. Nothing on the Ficeda Website shall be construed as conferring any license under any of Ficeda's or its parent's trademark or other intellectual property rights, whether by estoppels, implication, or otherwise.
- USER SUBMISSIONS
The Ficeda Website may now or in the future permit the publication of communications or data posted by you and other users ("User Submissions"). Any User Submission that you post to the Ficeda Website shall automatically be deemed non-confidential. By posting a User Submission, you expressly grant Ficeda a royalty-free, perpetual, irrevocable, nonexclusive, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, perform, display, and make derivative works of such User Submission, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, and further including the unfettered right to sublicense such rights.
You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you warrant and agree that you will not: (i) post material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material; (ii) publish falsehoods or misrepresentations that could damage Ficeda or any third party; (iii) post material that is obscene, defamatory, threatening, harassing, abusive, hateful or embarrassing to another user or any other person or entity; (iv) post advertisements or solicitations of business; (v) post chain letters or pyramid schemes; or (vi) impersonate another person.
Ficeda does not endorse any User Submission or any opinion, recommendation or advice expressed therein, and Ficeda expressly disclaims any and all liability in connection with User Submissions. Ficeda does not screen communications in advance and shall not be responsible for screening or monitoring User Submissions. If notified by a user of a User Submission that allegedly does not conform to this Agreement, Ficeda may investigate the allegation and determine in good faith and in its sole discretion whether to remove or request the removal of the User Submission.
- WARRANTY DISCLAIMER
You agree that your use of the Ficeda Website shall be at your sole risk. Ficeda provides the website and content solely on an "as is" basis without any warranty of any kind. to the fullest extent permitted by law, Ficeda, its parent corporation, officers, directors, employees, and agents, disclaim all warranties, express or implied, including without limitation the warranties of merchantability, non-infringement, and fitness for particular purpose, in connection with the website and your use thereof. Ficeda makes no warranties whatsoever about the accuracy, reliability, completeness, or timeliness of any content, services, software, text, graphics, photographs, links, or other material contained in the Ficeda website. Ficeda does not warrant that the website will operate error-free or that its servers are free of computer viruses or other harmful content. Ficeda does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Ficeda website or any hyperlinked website, or featured in any banner or other advertising, and Ficeda will not be a party to or in any way monitor any transaction between you and third-party providers of products or services. as with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate.
- LIMITATION OF LIABILITY
In no event shall Ficeda, its parent corporation, officers, directors, employees, or agents, be liable for any direct, indirect, incidental, special, punitive or consequential damages whatsoever (including without limitation lost profits or damages resulting from lost data or business interruption) resulting from your use or inability to use the Ficeda website, whether based on warranty, contract, tort or any other legal theory, and whether or not the company is advised of the possibility of such damages. the foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
You specifically acknowledge that Ficeda shall not be liable for user submissions or the defamatory, offensive, or illegal conduct of any third party, and that the risk of harm or damage from the foregoing rests entirely with you. You further acknowledge that the use of motorised vehicles can be dangerous and may lead to serious injury or death, and that any information you receive through the website concerning the operation of motorised vehicles is for general reference and is not in any way a substitution for professional training. Your use of any such information is entirely at your own risk, as even proper operation and use of a motorised vehicle may not prevent serious injury or death.
You agree to defend, indemnify and hold harmless Ficeda, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Ficeda Website; (ii) your violation of any part these terms and conditions; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defence and indemnification obligation will not merge on termination and your use of the Ficeda Website. Ficeda shall notify you of any such claim, suit, or proceeding, and may assist you, at your expense, in defending any such claim, suit or proceeding.
- EXPORT CONTROL
Australia controls the export of some products and information. You agree to comply with all applicable restrictions concerning the export or re-export of any data to countries or persons prohibited under the export control laws. By accessing and/or downloading any part of the Website outside of Australia, you warrant and agree that you are not in a country where the downloading of such data is prohibited, and that you are not otherwise subject to such prohibition. You are responsible for complying with the laws of your local jurisdiction regarding the import, export or re-export of any material, including software or data.
If any provision in these terms and conditions is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these terms and condition, which shall remain in full force and effect.
- NO WAIVER
No waiver of any of the terms and conditions shall be deemed a further or continuing waiver of such term or any other term, and Ficeda's failure to assert any right or provision under these terms and conditions shall not constitute a waiver of such right or provision.
Terms & Conditions of Sale
TERMS AND CONDITIONS OF SALE
In these terms and conditions references to “Ficeda”, “us”, “we” or “our” means Ficeda Pty Ltd ACN 003 381 235 its successors and assigns, Ficeda is the owner of this website. Ficeda’s registered office is 489-493 Victoria Street, Wetherill Park NSW 2164 Australia. References to “you” or “yours” means any user of this website.
References to “business day” in these Terms mean any day that is not a Saturday, Sunday, or a statutory public holiday in Australia.
Reference to Goods and Services means any supply of Goods or provision of Services by Ficeda to you and which are the subject of an Accepted Order(s).
1. APPLICATION OF TERMS AND CONDITIONS
1.1. These terms and conditions together with any signed written agreement apply to the purchase of Goods and provision of any Service between Ficeda and you.
1.2. No terms or conditions sought to be imposed by you (including without limitation the terms attached to any purchase order, terms in any tender, offer, counteroffer or proposal) will be incorporated or apply unless accepted by Ficeda in writing.
2. PLACEMENT OF ORDERS, SUPPLY AND SALE OF GOODS AND SERVICE.
2.1. You may order Goods or Services from Ficeda through the Ficeda Website.
2.2. An order is only binding once Ficeda, acting in its absolute discretion, has accepted your order (“Accepted Order”). Ficeda reserves the right to accept or decline any order in whole or in part. Ficeda is not obliged to sell Goods or provide Services to you and may at any time inform you either in writing or verbally that it will no longer sell Goods or provide Services.
2.3. No Accepted Orders may be cancelled by you except with the written consent of Ficeda.
2.4. All Goods supplied by Ficeda under these terms and conditions are for resale by you only. You warrant and agree that you shall not sell any Goods to any distributors, retailers or other third parties for resale.
2.5. You represent and warrant that you:
(a) Will comply with all laws in connection with the sale of Goods or the receipt of Services
(b) Will not make any false, misleading, or deceptive statements in respect of the Goods
(c) Will not sell Goods which are for off-road use only, for on-road use; and
(d) Will comply with any other reasonable instruction from Ficeda relating to the sale of Goods.
3. PRICES AND PAYMENT
3.1. All prices quoted by Ficeda are, unless expressly stated to the contrary, exclusive of all delivery costs and you must pay Ficeda these delivery cost by the due date for payment of the relevant Goods.
3.2. All prices quoted by Ficeda are, unless expressly stated to the contrary, exclusive of all taxes (including GST) and duties which may assessed or levied in respect of the supply of the Goods or Services, and all such taxes and duties are payable by you in addition to the purchase price by the due date for payment of the relevant Goods or Services.
3.3. You must pay for Goods or Services in advance and prior to delivery or performance of each Accepted Order, unless Ficeda agrees in writing that you are entitled to make payment in arrears for one or more Accepted Orders. If Ficeda accepts a credit application, this is Ficeda’s agreement to payment in arrears for amounts up to the credit limit agreed by Ficeda from time to time, until Ficeda notifies you that it no longer accepts payment in arrears.
3.4. Without limiting clause 3.3 above, you must pay an invoice issued by Ficeda within the time period specified by Ficeda and in accordance with payment directions specified on the invoice or notified by Ficeda to you.
3.5. Ficeda may decrease the credit limit or withdraw its agreement to allow payment in arrears for any future orders, which Ficeda has yet to accept or agree to, at any time by notifying you by email or otherwise in writing.
3.6. Ficeda may also decrease the credit limit or withdraw its agreement to payment in arrears at any time for any existing Accepted Orders by notifying you by email or otherwise in writing. In circumstances, where Ficeda withdraws its agreement to payment in arrears, you are entitled to terminate the affected existing Accepted Order(s) by notice in writing within three (3) business days of Ficeda's email withdrawing payment in arrears (and provided that Ficeda receives the notice of termination prior to dispatch), unless Ficeda has withdrawn its agreement for payment in arrears for any of the following reasons: if you fail to pay any amounts due to Ficeda under these terms and conditions by the due date; if Ficeda reasonably considers there has been an adverse change in your financial position; if Ficeda reasonably considers there is a risk of delayed or non-payment for the Goods or Services; or where relevant, if your security for payment is exhausted or is no longer in effect without the agreement of Ficeda.
3.7. If you fail to pay Ficeda any amount by the due date for payment, without limiting any other remedies available to Ficeda, Ficeda may, on notice to you (notice to be given verbally, by email or otherwise in writing), defer delivery or performance of any Goods or Services, which Ficeda has agreed to supply, until all outstanding amounts are paid.
3.8. Ficeda is entitled to charge you interest on all overdue amounts at a rate equal to four per cent above the Cash Rate of the Reserve Bank of Australia per annum for any amounts that remain unpaid by you after the due date, until such amount is paid. You must pay such interest on Ficeda's demand.
4. DELIVERY OF GOODS
4.1. Ficeda shall arrange for the delivery of each Accepted Order during normal business hours to the location specified in the Accepted Order. Any delivery to you will be at your expense, unless other agreed in writing between the parties. Ficeda is entitled to arrange delivery in instalments.
5.1. Risk in the Goods shall pass to you upon delivery. Delivery is deemed to have occurred at the time the Goods are collected or received by the first courier or other service provider delivering the Goods to you. Where you return Goods to Ficeda, the Goods are at your risk until the Goods have been received by Ficeda at its premises.
5.2. Ficeda is not responsible for any loss or damage to Goods in transit. If Goods are damaged in transit, at your request, Ficeda shall use reasonable endeavours to assist you with any claim against the courier or service provider delivering the Goods.
6.1. From the point that risk transfers in accordance with clause 5 above, you must, at your own cost, insure and keep insured the Goods with a reputable insurance company against all risk to which a prudent owner of the Goods would insure the Goods at their full cost price and all risks of loss or damage where you have possession, custody or control of ownership of the Goods.
6.2. You must provide Ficeda with a certificate of currency, upon Ficeda’s request.
7. RETENTION OF TITLE.
7.1. Ficeda remains the owner of the Goods delivered to you until payment in full for such Goods, and for all other Goods supplied by Ficeda, to you. Where you process or comingle Goods into other Goods, equipment, or property, Ficeda will take title to the other Goods, equipment and or property as well. You also agree to hold Goods as Ficeda’s bailee and will store and label Goods so that Ficeda’s ownership of the Goods is clear.
7.2. You irrevocably grant Ficeda the right to enter premises in which Ficeda’s Goods are stored to inspect and/or remove them, at any time and for whatever reason, and if the Goods are sold, you agree to grant Ficeda access to your records that evidence the sale of Goods and the treatment of any sale proceeds.
7.3. You are entitled to sell Ficeda Goods as bailee, but not otherwise, and if you sell Goods before all monies payable to Ficeda are paid in full (including any monies payable to Ficeda in respect of Services rendered), the proceeds from the sale (‘Proceeds’), to the extent that they do no exceed the monies outstanding to Ficeda by you at the time of sale, are to be held in trust for Ficeda.
7.4. Proceeds held in trust are payable on demand, and you agree not to charge or encumber in any way those proceeds.
7.5. As an additional obligation to the retention of title and other security obligations contained in these terms and conditions, you hereby grant a security interest (‘Additional Security Interest’) in all of your real and personal property, whether presently existing or to be acquired, located in Australia in favour of Ficeda to secure payment of monies due and owing by you to Ficeda under or in connection with these terms and conditions. Ficeda shall only be entitled to take action to enforce its rights under this Additional Security Interest if:
(i) You fail to pay any monies due and owing by you to Ficeda under or in connection with these terms and conditions in aggregate of $3,000.00 or greater, and that failure isn’t remedied within thirty (30) days of you receiving a written notice from Ficeda requiring the non-payment to be remedied’ or
(ii) Ficeda considers on reasonable grounds that you have dissipated, or there is a risk of that you will dissipate, your assets which are the subject of the Additional Security Interest to a material extent (otherwise than in the ordinary course of your business);
8.1. In these terms and conditions (i) ‘PPSA’ means the Personal Property Securities Act 2009 (Cth); and (ii) the terms ‘Register’, ‘Purchase Money Security Interest’, ‘Security Agreement’, ‘Security Interest’, ‘Verification Statement, ‘Franchising Statement’ and ‘Franchising Change Statement’ will have the meanings given to them in the PPSA.
8.2. You acknowledge and agree:
(i) These terms and conditions and each supply forms part of an entire Security Agreement provided for the purposes of the PPSA to secure the interests of Ficeda; and
(ii) To grant a Security Interest to Ficeda in all Goods (and the Proceeds) previously supplied by Fiecda to you (if any) and in all future Goods (and the Proceeds) supplied by Ficeda to you; and
(iii) That the Security Interest granted in accordance with paragraph 8.2(ii) above is a Security Interest for the purposes of the PPSA.
8.3. You acknowledge that Ficeda may register its Security Interest in the Goods (and the Proceeds) as a Purchase Money Security Interest on the Register (including its interest in inventory arising by way of control) and you must execute any document and do all such further acts and things and provide such further information as may be required by Ficeda to enable registration of the Security Interest granted by you on the Register, or to perfect or correct any registration.
8.4. You agree that to the extent permitted by law, Ficeda owns, and you waive any rights you have to anything installed in or affixed to the Goods, including any rights you have might otherwise have under Part 3.3 of the PPSA.
8.5. You acknowledge and agree that where the PPSA applied to action taken by Ficeda in relation to the Goods, you: (i) agree that sections 116(2), 120, 125, 142 and 143 of the PPSA will not apply; and (ii) you waive your rights to receive any notice Ficeda is required to give you under the PPSA (to the extent that the notice can be excluded) and includes any right to receive a notice under sections 95, 118(1)(b), 121(4), 123(2), 130, 132(3)(d), 132(4) and 135 of the PPSA and any Verification Statements.
8.6. In accordance with section 14(6) of the PPSA, it is agreed that Ficeda may appropriate any payments from you, or any third party, in any manner it considers expedient.
9. CLAIMS FOR SHORTAGAGES
9.1. You agree that any claim by you alleging a shortage in Goods delivered must be made in writing and forwarded to Ficeda within fourteen (14) days of you receiving the Goods. You shall supply Ficeda such documentary evidence and other material to justify your claim.
10. RETURN OF GOODS.
10.1. You are not entitled to return Goods, if you no longer wish to purchase them, unless agreed to in writing by Ficeda and subject to the terms agreed by Ficeda in writing. This does not affect your rights if Ficeda’s supply of Goods is in breach of these terms and conditions.
11. WARRANTY CLAIMS
11.1. You must promptly notify Ficeda if you allege a Good is defective and requests a return, replacement, repair, or refund. You must not agree to return, refund, replacement, or repair at your own cost, Ficeda or the original manufacturer for an alleged defective Good without the consent of Ficeda (consent not to be unreasonably withheld or delay). You must comply with Ficeda’s reasonable directions in relation to the management of such claims including without limitation any procedures which Ficeda may have in place with any third-party manufacturer for the management of defective Goods.
12. LIMITATION OF LIABILITY
12.1. Nothing in these terms and conditions excludes any consumer guarantees under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (‘Australian Consumer Law’) (if any), and nothing in these terms and conditions excludes any applicable law or liability, to the extent it cannot be excluded, restricted or modified by agreement of the parties.
12.2. To the extent permitted by the Australian Consumer Law and other law, Ficeda’s liability under or in connection with these terms and conditions, whether arising in contract, tort (including negligence) or otherwise, relating to any liability in connection with:
(a) The supply (or failure to supply) Goods or Ficeda Property (‘Relevant Goods’), is limited to Ficeda doing any one or more of the following (at its election):
1. Replacing the Relevant Goods or supplying equivalent Relevant Goods or repairing the Relevant Goods; or
2. Paying the cost of replacing Goods or of acquiring equivalent Relevant Goods or of having the Relevant Goods repaired; or
3. Where the liability does not relate to Ficeda’s breach of a consumer guarantee, a refund or credit of the fees paid or payable for the Relevant Goods; and
(b) The supply (or failure to supply) of Services, is limited to Ficeda doing any one or more of the following (at its election):
1. Supplying the Service again; or
2. Paying the cost of having the Services supplied again
(c) Except for Ficeda’s liability to you under any consumer guarantee under the Australian Consumer Law, and otherwise to the extent permitted by law, Ficeda has no liability under or in connection with these terms and conditions and any, whether arising in contract, tort (including negligence) or otherwise, for loss of profit, loss of revenue, loss of business, loss of opportunity, loss of anticipated savings, damage to goodwill or reputation or indirect or consequential loss of any kind whatsoever.
13. RELIEF FOR NON-PERFORMANCE
13.1. If for any reason beyond the reasonable control of Ficeda, Ficeda is unable to perform in whole or in part any obligation under these terms and conditions, then Ficeda shall be relieved of that obligation to the extent and for the period that it is so unable to perform and shall not be liable to you in respect of this inability.
14.1. You shall indemnify Ficeda in relation to any claims by, or liability to any third party (including without limitation any customer of yours), and any losses, damages, costs and expenses in connection with such claims or liability suffered or incurred by Ficeda arising out of any breach by you of clause 2 of these terms and conditions, or any other act or omission by you, or any misuse of the Goods by you or any third-party, but excluding to the extent caused or contributed by Ficeda’s breach of these terms and conditions or negligent, reckless or wilful act or omission.
15. MANUFACTURER’S DOCUMENTION
15.1. The manufacturer of the Goods may provide documents with the Goods detailing the manufacturer’s warranty against defects. The Australian Consumer Law requires that these documents meet certain requirements. Except where these documents are produced by Ficeda, Ficeda makes no representation, and gives no warranty, as to the content of any documents supplied by the manufacturer with the Goods, or the compliance of these documents with any law or regulation, including, but not limited to, the Australian Consumer Law
15.2. To the fullest extent permitted by law, Ficeda is not liable, whether arising in contract, tort (including negligence) or otherwise, in the event that you suffer any loss or damage, or is the subject of any claim, arising out of the content of any documents that the manufacturer supplies with the Goods, except to the extent the loss or damage is caused or contributed to by Ficeda's breach or negligent, reckless or willful act or omission. It is your responsibility to check these documents for accuracy and compliance.
16. NO ASSIGNMENT
16.1. You must not assign any of its rights under these terms and conditions (in whole or in part) without the prior written consent of Ficeda.
17. LAW AND JURISDICTION
17.1. These terms and conditions are governed by the laws of New South Wales and all parties submit to the non-exclusive jurisdiction of the relevant Courts of that State and any courts of appeal from them.
18. NOT AGENT
18.1. Nothing in these terms and conditions or any other circumstances makes you the agent, for, or partner of, Ficeda.
19. INVALIDITY AND ENFORCEABILITY
19.1. In the event that any provision in these terms and conditions is illegal, void or unenforceable, it is severed from these terms and conditions such that the rest of these terms and conditions may be construed without such clause or part of these terms and conditions.
20. RIGHT TO VARY TERMS AND CONDITIONS
20.1. Ficeda is entitled to vary these terms and conditions on not less than thirty (30) day’s prior written notice by email or otherwise in writing to you, and such varied terms and conditions apply to any orders placed by you after the expiry of the time specified in the notice.