1.1 In these terms and conditions
(a) "Customer" means the customer, any person acting on behalf of or with the authority of the customer, or any person purchasing Goods and/or Services from Armstrong;
(b) "Default" means each of the events set out in clause 7.6;
(c) "Goods" means all goods and products supplied by Armstrong to the Customer from time to time;
(d) "Armstrong" means the relevant authorised Armstrong Locksmiths franchisee, including employees, contractors and agents, and its successors and assigns;
(e) "premises"includes, without limitation, any house, building, or vehicle;
(f) "Price" means the cost of the Goods and Services as determined in accordance with clause 4.1; and
(g) "Services" means all the services supplied by Armstrong to the Customer.
1.2 The Goods and Services are supplied on these terms and conditions of trade. No variation of these terms and conditions of trade is permitted unless Armstrong has agreed in writing to such variation. These terms and conditions of trade prevail over the terms of any purchase order or any other terms of contract submitted by the Customer.
1.3 The parties to a particular contract shall be the Customer, and the Armstrong company which renders the invoice for the Goods and Services provided.
2.1 Where a quotation is given by Armstrong for Goods and Services:
(a) Subject to clause 2.2, the quotation shall be valid for thirty (30) days from the date of issue and thereafter shall be deemed to be withdrawn;
(b) Only Goods and Services itemised in the quotation are included in the contract;
(c) The quotation shall be exclusive of GST unless specifically stated otherwise;
(d) No variation of the quotation is permitted unless Armstrong has agreed in writing to such variation; and
(e) Armstrong reserves the right to alter the quotation because of circumstances beyond its control.
2.2 Armstrong reserves the right to withdraw a quotation at any time.
2.3 A quotation is based on rates and conditions at the time of issue. Any increase in the cost of labour or materials thereafter may be charged at Armstrong's sole discretion and Armstrong may increase the price quoted at any time prior to the quotation being accepted.
3.1 Any instructions received by Armstrong from the Customer for the supply of Goods and Services and/or, as the case may be, the signing of any quotation provided by Armstrong to the Customer shall constitute acceptance of these terms and conditions of trade.
3.2 Any use of a trade account with Armstrong shall constitute acceptance of these terms and conditions of trade.
4. Price and Payment
4.1 The Price shall be either:
(a) Subject to clause 2.2, the Price stated in Armstrong's quotation; or
(b) If there is no quotation, the cost of the Goods and Services calculated using Armstrong's prices current at the time of invoice.
4.2 Payment of the Price is to be made by the Customer to Armstrong in full:
(a) On delivery of the Goods or completion of performance of the Services; or
(b) Where the Customer holds a trade account with Armstrong, before the 20th day of the month following the date of invoice.
4.3 Time for payment for the Goods and Services shall be of the essence.
4.4 The Customer will make all payments due to Armstrong in full without deduction or setoff by way of cash, cheque, bank cheque, direct credit, or by any other method agreed by Armstrong. Receipt by Armstrong of any form of payment other than cash or bank cheque shall not be deemed to be payment until that form of payment has been honoured or cleared.
4.5 Any deposit paid is non-refundable.
4.6 If the provision of Goods and the performance of Services is made by Armstrong in relation to construction work (as defined in the Construction Contracts Act 2002) then any invoice issued by Armstrong in relation to the Goods and Services is a payment claim for the purposes of Section 20 of the Construction Contracts Act 2002.
4.7 Are Goods and Services are sold subject to goods and services tax.
5. Supply and Delivery
5.1 The Customer may place orders for Goods or Services from time to time. Armstrong will use its reasonable endeavours to deliver all Goods and provide Services within the agreed time, or if no time has been agreed upon, within fourteen business days of receipt of each order. Armstrong has no obligation to deliver any Goods or provide any Services unless Armstrong accepts the order.
5.2 The anticipated time of supply will be extended if, for reasons outside of Armstrong's reasonable control, Goods or Services are not able to be procured, or if Armstrong is not able to obtain unimpeded access to the relevant premises for the purpose of delivery the Goods or performance of the Services.
5.3 Armstrong shall not be liable for any loss or damage suffered or incurred by the Customer or by any third party as a result of any delay by Armstrong in delivering and/or completing the Goods and Services.
5.4 Armstrong may make delivery of Goods or Services by instalments and the Customer must pay for any such instalments regardless of whether or not all the Goods or Services ordered have been delivered or performed.
5.5 If it becomes impracticable for Armstrong to supply any Goods or Service ordered by the Customer, Armstrong shall use reasonable endeavours to obtain a substitute product or service reasonably suited for the Customer's requirements, and may offer to supply that product or service in substitution, at Armstrong's normal price of that substituted product or service. The Customer shall be free to accept or decline that offer. The Customer shall have no claim against Armstrong in the event that it is impracticable for Armstrong to supply a product or service.
5.6 If Armstrong has agreed to install any locking mechanism on the Customer's premises as directed by the Customer, delivery shall take place when the locking system is installed. In all other cases, delivery of Goods shall be deemed to take place:
(a) When the Goods are uplifted by the Customer from Armstrong's premises; or
(b) When Armstrong personnel deliver the Goods to the Customer or to the Customer's premises; or
(c) When the Goods are provided by Armstrong to a courier organization for delivery to the Customer.
5.7 All Goods which are to be delivered to a courier for carriage to the Customer shall be delivered upon the following terms:
(a) The Customer accepts all risk relating to the Goods following delivery to the courier;
(b) The Customer accepts that the terms of carriage will be the standard terms upon which the courier carries goods for Armstrong or Armstrong's customers from time to time.
6.1 Notwithstanding that Armstrong retains ownership of the Goods until payment is made in full, all risk in the Goods passes to the Customer on delivery (or deemed delivery).
7. Title and Security (Personal Property Securities Act 1999 ("PPSA"))
7.1 The Customer grants to Armstrong a purchase money security interest ("PMSI") in the Goods and agrees that the PMSI has attached to all Goods supplied now or in the future to the Customer by Armstrong and that the attachment of the PMSI has in no way been deferred or postponed from the date of these terms and conditions.
7.2 Title in any Goods and Services supplied by Armstrong passes to the Customer only when the Customer has made payment in full for all Goods and Services provided and of all other sums due to Armstrong by the Customer on any account whatsoever. Until all sums due to Armstrong have been paid in full Armstrong has a security interest in all Goods and Services provided to the Customer.
7.3 Without limitation to any other rights afforded to Armstrong under the PPSA, until the Customer has paid for the Goods and Services in full:
(a) The Goods shall be held as fiduciary bailee for and on behalf of Armstrong; and
(b) If the Goods are sold by the Customer before payment in full to Armstrong then the proceeds of sale (less any mark-up imposed by the Customer on such sale) shall be held in trust by the Customer for Armstrong in a separate bank account.
7.4 If the Goods and Services are attached, fixed or incorporated into any property (including any real property) of the Customer or any third person, title to the Goods and Services shall remain with Armstrong until payment has been made in full. The Customer will, prior to installation of any Goods into real property, notify any mortgagee of such property of Armstrong's PMSI in such Goods.
7.5 The Customer hereby irrevocably grants Armstrong and its agents authority to enter any premises owned or occupied by the Customer or on which Goods and Services are situated at any reasonable time after Default by the Customer or before Default if Armstrong believes that a Default is likely and to remove and repossess any Goods and Services and any other property to which the Goods and Services are attached or in which the Goods and Services are incorporated. Armstrong shall not be liable for any costs, damages, expenses or losses suffered or incurred by the Customer or any third party as a result of this action, nor will Armstrong be liable to the Customer or such third parties in contract, tort or otherwise in any way unless by statue such liability cannot be excluded. Armstrong may (at its sole option) either resell any repossessed Goods and Services and credit the Customer's account with the net proceeds of sale (after deduction of all repossession, storage and selling costs) or may retain any repossessed Goods and Services and credit the Customer's account with the invoice value thereof less such sum as Armstrong reasonably determines on account of wear and tear, depreciation, obsolescence, loss or other costs.
7.6 Each of the following shall constitute a Default by the Customer:
(a) Non payment of any sum by the due date;
(b) The Customer intimates that it will not pay any sum by the due date;
(c) Failure by the Customer to comply with any obligations imposed on it under these terms and conditions of trade;
(d) Any Goods are seized by any other creditor of the Customer;
(e) Any Goods are materially damaged after delivery to the Customer and before payment in full has been made by the Customer;
(f) The Customer is declared bankrupt, is placed in liquidation or voluntary administration or a receiver or administrator is appointed to any of the Customer's assets;
(g) A material adverse change in the financial position of the Customer occurs (as reasonably determined by Armstrong).
7.7 If a Default occurs all amounts owing by the Customer shall be immediately due and payable and Armstrong shall be entitled to enforce all rights available to it under these terms and conditions of trade, at the cost, risk and responsibility of the Customer in all respects.
7.8 The Customer undertakes to sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Armstrong may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register in respect of the PMSI granted to Armstrong under clause 7.1.
7.9 The Customer shall not change its name without first notifying Armstrong of the new name not less than seven (7) days before the change takes effect.
7.10 Unless otherwise agreed to in writing by Armstrong, the Customer waives its right to receive verification statements and financing change statements under the PPSA.
7.11 If the Credit (Repossession) Act 1997 applies to any transaction between the Customer and Armstrong, the Customer has the rights provided for in such Act to the extent that they are inconsistent with anything in these terms and conditions of trade and cannot be contracted out of.
7.12 If the Goods are incorporated into real property, or the Services relate to real property, the Customer grants Armstrong a mortgage over that property securing all monies owed in relation to such Goods and Services.
8.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days notify Armstrong of any alleged defect, shortage in quantity, damage or failure to comply with any quotation or description agreed in writing by Armstrong.
8.2 The Customer shall afford Armstrong an opportunity to inspect the Goods within a reasonable time of the Customer notifying Armstrong of any alleged defect, shortage in quantity, damage or failure to comply with any quotation or description agreed in writing by Armstrong.
8.3 If the Customer shall fail to comply with clauses 8.1 and 8.2, the Goods shall be deemed to be free from any defect, damage or failure to comply with any description or quotation.
8.4 For Goods which Armstrong has agreed in writing that the Customer is entitled to reject, Armstrong's liability is limited to either (at Armstrong's option) replacing or repairing the Goods.
8.5 Returns of Goods will only be accepted by Armstrong if:
(a) The Customer has complied with the provisions of clause 8.1 or Armstrong has agreed in writing to accept the return of the Goods; and
(b) The Goods are returned at the Customer's cost within fourteen (14) days of delivery (or deemed delivery); and
(c) The Goods are returned in the condition in which they were delivered.
9.1 Where the Goods have the benefit of a third party warranty, Armstrong will (to the extent permitted by the third party) pass the benefit of such warranty to the Customer, but will not itself be liable under such warranty.
9.2 Armstrong warrants all workmanship in the completion of Services and the installation of Goods for a period of twelve months following the date of performance of such Services or installation of Goods. For the avoidance of doubt, this workmanship warranty from Armstrong does not in any way extend or limit the benefit of a manufacturer's warranty (if any) under clause 9.1.
9.3 To the extent legally permitted, and subject only to clauses 9.1, 9.2. and 10:
(a) All warranties and representations implied by customary practice, at law, or under statute, are excluded;
(b) Armstrong's liability in connection with any Goods or Service is limited (at Armstrong's option) to the repair or replacement of the relevant Goods and Services. In no event shall Armstrong's liability to the Customer exceed the Price of the relevant Goods and Services;
(c) Armstrong shall not be liable in contract, tort (including negligence), or otherwise for any direct or indirect damage, economic loss, or consequential or other loss whatsoever in respect of or arising out of Goods or Services provided by Armstrong or any act or omission of Armstrong.
10. Consumer Guarantees Act 1993
10.1 These terms and conditions of trade are subject to the provisions of the Consumer Guarantees Act 1993 ("CGA") in all cases where the Customer is a consumer and does not acquire the Goods for the purposes of business. In this clause 10 the terms "consumer" and "business" have the meanings given to them in the CGA.
10.2 In any event, Armstrong's liability under any claim shall not exceed the cost of the Goods and Services. Armstrong does not make or give any express guarantees (as defined in the CGA).
10.3 Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention.
11. Intellectual Property
11.1 The Customer acknowledges that Armstrong (or its supplier) is the sole owner of the copyright in the Goods. The Customer must not copy or permit any other person to copy any keys or locks supplied, or otherwise deal with the intellectual property in the Goods in any manner without the specific written consent of Armstrong (or its supplier) as owner of the intellectual property.
12. Default and Consequences Of Default
12.1 If the Customer fails to make payment of any amount by the due date interest (calculated daily from the due date until the date that payment is made in full to Armstrong) shall accrue and be payable on the overdue amount at the rate of 2.5% per calendar month. Such interest shall compound monthly at such a rate after as well as before any judgment.
12.2 If the Customer defaults in payment of any amount when due, the Customer shall indemnify Armstrong from and against all costs and disbursements incurred by Armstrong (including solicitor/client costs on a full indemnity basis and collection agency costs), arising from, or consequent on, enforcement and/or collection of the overdue amount.
12.3 If payment of any amount by the Customer (whether by cheque, credit card, or other means) is dishonoured or rejected by the paying bank or agency, the Customer shall be liable to pay Armstrong an administration fee of $50.00. This fee is in addition to all interest and other costs payable by the Customer under this clause 12.
12.4 If a Default occurs, then without prejudice to any other rights of Armstrong under these terms and conditions of trade or at law (including under the CCA) Armstrong may, in its sole discretion:
(a) Suspend or terminate the supply of Goods and Services to the Customer and any of Armstrong's other obligations under these terms and conditions of trade; and/or
(b) Cancel all or any part of any order of the Customer which remains unperformed.
12.5 Armstrong will not be liable to the Customer for any loss or damage the Customer suffers as a result of any exercise by Armstrong of its rights under this clause 12.
12.6 Armstrong's rights under this clause 12 are in addition to and not in substitution for any other rights Armstrong may have at law.
13.1 The Customer may only cancel an order for Goods or Services if agreed in writing by Armstrong.
13.2 If any order for Goods and Services is cancelled under clause 13.1 or is cancelled by Armstrong at any stage prior to delivery or performance of the Goods and Services the Customer shall remain liable to make payment for all work undertaken by Armstrong up to the time of cancellation.
14. Privacy Act 1993
14.1 The Customer irrevocably authorises:
(a) Any person or corporation to provide Armstrong such information as Armstrong may require in response to any credit enquiry in relation to the Customer;
(b) Armstrong to collect, retain and use any information about the Customer, for the purpose of assessing the Customer's creditworthiness or marketing products and services to the Customer; and
(c) Armstrong to disclose information about the Customer, whether collected by Armstrong from the Customer directly of obtained by Armstrong from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a Default by the Customer.
14.2 Where the Customer is an individual:
(a) The authorities under clause 14.1 are authorities or consents for the purposes of the Privacy Act 1993; and
(b) The Customer shall have the right to request Armstrong for a copy of the information about the Customer retained by Armstrong and the right to request Armstrong to correct any incorrect information about the Customer held by Armstrong.
15. Customer's Indemnity
15.1 The Customer warrants that it has full authority to authorise Armstrong to install any Goods installed by Armstrong at the Customer's request. The Customer indemnifies Armstrong against the consequences of any claim by any third party following installation of the Goods at the direction of the Customer. Such indemnity extends to reasonable legal costs incurred by Armstrong arising out of the claim by the third party.
15.2 The Customer shall provide Armstrong full access to premises in which Goods are to be installed or Services are to be performed, and adequate power, lighting, and other facilities to allow Armstrong to install such Goods and perform such Services. Armstrong may make further charges to the Customer should there be any delay, or additional attendances as a consequence of lack of access to facilities or lack or adequate facilities.
15.3 The Customer will provide Armstrong with reasonable notice in advance if it is necessary for Armstrong to co-ordinate with any other tradespersons in connection with the installation of Goods or performance of Services.
16.1 If any provision of these terms and conditions of trade shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.2 These terms and conditions of trade and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
16.3 Armstrong may assign its rights under these terms and conditions of trade and under any contract formed with the Customer and may sub-contract all or any part of its rights and obligations, in each case without the Customer's consent.
16.4 Armstrong reserves the right to review and amend these terms and conditions of trade at any time. If, following any such review, there is to be any change to these terms and conditions of trade, then that change will take effect from the date on which Armstrong notifies the Customer of such change.
16.5 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.