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STANDARD TERMS AND CONDITIONS OF SALE

1. INFORMATION ABOUT US 

We are ICM Aluminium Limited trading as Lancom Commercial, a company registered in New Zealand under NZBN 9429042135807.

 

2.  TERM  

This Agreement shall commence on the date the Customer confirms acceptance of our Quotation and shall continue until the earlier of:

(a) the Goods being delivered to the Customer (or if applicable installed at the Customer’s property) in accordance with this Agreement; or

(c) the termination of this Agreement in accordance with clause 19.

 

3.  LANCOM’S RESPONSIBILITIES  

3.1 Lancom shall supply the Goods to the Customer with reasonable skill, care and diligence.

3.2 If Lancom agrees to install the Goods at the Customer’s property, Lancom’s representative will carry out a survey of the Customer’s property where the Goods are to be installed.  It is not a general survey of the Customer’s property and Lancom will not be responsible for remedying any pre-existing defects in the Customer’s property that arises in the course of installing the Goods.

 

4.  CUSTOMER’S OBLIGATIONS  

4.1 The Customer shall:

(a)  be responsible for obtaining any necessary consents and/or licences relating to the installation of the Goods at the Customer’s property;

(b) make available to Lancom all necessary information to enable Lancom to be able to properly supply the Goods, including but not limited to providing accurate measurements, information, details or particulars relevant to the installation of the Goods at the Customer’s property; 

(c) co-operate with Lancom in all matters relating to the supply of the Goods;

(d)  if required, provide Lancom with access to the Customer’s property as may reasonably be requested by Lancom and agreed with the Customer in advance, for the purposes of supplying and if applicable installing, the Goods; and

(e) if relevant, inform Lancom of all health and safety and security requirements that apply at the Customer’s property which Lancom will require access to.

 

5.  MEASUREMENTS

5.1 Where the Customer supplies Lancom with measurements or specifications (or otherwise agrees a specification), Lancom will manufacture the Goods according to such measurements and specifications. 5.2 Lancom is entitled to rely on such measurements, specifications and particulars provided to it by the Customer under clause 5.1 and Lancom will not be responsible for any inaccuracies in any measurements, specifications or particulars provided to it by the Customer.

 

6. INSTALLATION OF GOODS

6.1 The Company does not make recommendations to customers of any installers of the products sold. Any referrals made by the Company are without warranty and the Customer should seek their own reference as to competency. The Company does not accept any liability whatsoever for unsatisfactory installation of its products by the Customer or any third party. All products must be installed within manufacturer’s guidelines, which are available on request. Failure to install products to the manufacturer’s guidelines will invalidate any warranty.

6.2 If Lancom installs the Goods at the Customer’s property, it will not remove any fixtures or fittings that are attached to the Customer’s property unless otherwise agreed as part of the installation of the Goods at the Customer’s property.

6.3 Every reasonable effort will be made to minimise any damage during installation of the Goods to the immediately surrounding plaster, brickwork, floors, rendering, tiles, paint and wallpaper at the Customer’s property.  Notwithstanding such effort, repair and replacement of these remains the Customer’s responsibility.

6.4 If Lancom installs the Goods at the Customer’s property, it will not be responsible for the cost of repairing any pre-existing faults or damage to the Customer’s property that are discovered in the course of installation.

6.5 Materials removed during installation of the Goods will be taken away for disposal and it will not be possible to retrieve them.  If the Customer requires any item to be retained, this must be agreed by Lancom and specifically stated in the Quotation.

 

7.  VARIATION ORDER  

7.1  Unless otherwise agreed with Lancom, once a Quotation has been accepted by Lancom, the Customer may not request any changes to the Goods to be supplied under the Quotation.

7.2 If Lancom agrees to any changes being made, such proposed changes shall not come into effect until a relevant Variation Order has been signed by both parties. A Variation Order shall be a document setting out the proposed changes and the effect those changes will have on:

(a)  the Price;

(b)  the Delivery Date; and

(c)  any terms of this Agreement.

7.3 If the parties:

(a)  agree to a Variation Order, they shall sign it and that Variation Order shall amend this Agreement; or

(b)  are unable to agree a Variation Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 33.

 

8.  PRICE AND PAYMENT  

8.1 The Price includes the cost to supply the Goods including insurance, packaging and delivery costs and if applicable, the cost to install the Goods at the Customer’s property.

8.2 Unless the Price is stated to include GST, GST (or any similar tax) is to be added to any payment under this Agreement.

8.3 Unless otherwise agreed, the Customer shall pay to Lancom the Price as follows:

(a)  50% of the Price payable on the date the Customer accepts the Quotation;

(b) 40% of the Price payable by no later than 2 Business Days prior to the Delivery Date; and

c) the balance of the Price payable by no later than 5 Business Days following the Delivery Date.

8.4 No order for the supply of the Goods will be accepted until a deposit is paid under clause 8.3(a).  Any deposit paid under this Agreement is non-refundable.

8.5 Lancom reserves the right to delay delivery of the Goods until receipt of the amount due under clause 8.3(b).  

8.6  Lancom shall invoice the Customer for the Price at the intervals specified in 8.3 above.

8.7  The Customer shall, without set off or deduction, pay each invoice to a bank account nominated in writing by Lancom.

8.8  Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Lancom any sum due under this Agreement on the due date, the Customer shall:

(a) indemnify Lancom for any losses, expenses, costs and disbursements incurred or suffered Lancom in recovering any overdue amount including debt collection fees and legal costs on a solicitor-client basis; and

(b) pay interest on the overdue amount at Lancom’s non-penalty overdraft interest rate.  Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.

 

9. DELIVERY

9.1 Lancom will deliver the Goods to the delivery address on the Delivery Date and in accordance with any delivery instructions agreed between the Customer and Lancom. 

9.2 The Delivery Date is an estimate only and time shall not be of the essence.  Lancom will use its reasonable endeavours to deliver the Goods on the Delivery Date.  However the Customer acknowledges that delays may occur and Lancom may need to change the Delivery Date.  Lancom is not responsible for any delays or any costs that may be incurred by the Customer due to any delays in the delivery of the Goods on a date that is later than the Delivery Date.

9.2 The Customer may change the Delivery Date by giving Lancom no less than 5 Business Days’ notice prior to the Delivery Date, otherwise a rearrangement fee of $500 will be payable.

9.3 If the Customer requests the Delivery Date be changed to a date that is more than 2 weeks following the Delivery Date as specified in the Quotation, Lancom reserves the right to charge an administration fee to cover the costs of rearranging delivery and additional storage costs.  

9.4 The Customer or the Customer’s authorised representative (whose details are to be notified to Lancom in advance of delivery) must be present at the delivery address on the Delivery Date, to inspect and accept the Goods.  If the Customer or the Customer’s authorised representative is not present at the delivery address to inspect and accept the Goods, then the Goods will be returned to Lancom’s premises and re-delivery will be arranged for an alternative Delivery Date. 

9.5 The Customer will be responsible for all costs incurred by Lancom for storing and transporting the Goods back to Lancom’s premises and the costs of redelivery.

 

10. INSPECTION AND ACCEPTANCE 

10.1 The Customer or its authorised representative must inspect the Goods on delivery and sign the delivery docket to confirm receipt.

10.2 If any of the Goods do not confirm to the specifications under this Agreement, the Customer must by no later than 2 Business Days following delivery, notify Lancom of any defects or errors.

10.3  Unless Lancom’s standard product warranty applies in respect of the Goods, Lancom has no obligation to rectify any defects in the Goods unless the Customer gives notice under clause 10.2. 

10.4  If the Customer refuses or fails to take delivery of the Goods in accordance with this Agreement, delivery shall nevertheless be deemed to have taken place for the purpose of Lancom’s rights of payment and Lancom shall be entitled to store the Goods at the Customer’s risk and expense, including all transportation charges.

 

11. RISK AND TITLE  

11.1 Risk in the Goods will pass to the Customer when the Goods are delivered to the Delivery Address.

11.2 Title in the Goods will pass to the Customer on payment in full being made to Lancom.

11.3 At any time before title in the Goods passes to the Customer and to the extent that the Goods have not yet been incorporated into the Customer’s property, Lancom may require the Customer to deliver up the Goods or enter the Customer’s property to recover and remove the Goods.

 

12. WARRANTY

Once the Customer has paid the Price in full and all other monies (if any) due in accordance with this Agreement, the Customer (or such person as the Customer notifies to us as being the owner of the Goods) is entitled to the benefit of Lancom’s standard product warranty in respect of the Goods.

12.2 If the Customer is the owner of the property where the Goods have been installed and sells that property, the product warranty is transferable to the subsequent owner of the property, who may take the benefit of the remainder of the duration (if any) of the product warranty.  Lancom reserves the right to make a nominal charge for administration cost for transferring the guarantee and if applicable undertaking a survey of the Goods at the property prior to such transfer. 

 

13.  CONSUMER GUARANTEES ACT

13.1 If the Customer is purchasing the Goods for business purposes, the provisions of the Consumer Guarantees Act 1993 are excluded in relation to the supply of the Goods.

13.2  If the Customer is not purchasing the Goods the Services for business purposes then to the extent that any provision of this Agreement is inconsistent with the Consumer Guarantees Act 1993 then provisions of that Act will prevail.  

 

14.  INTELLECTUAL PROPERTY RIGHTS  

All Lancom IPR is and will remain the property of Lancom. 

 

15.  COMPLIANCE WITH LAWS

In performing its obligations under this Agreement, Lancom shall comply with the Applicable Laws.

 

16.  PRIVACY ACT 1993  

Where Lancom collects any information about an individual whose identity is apparent or can be reasonably ascertained, from the information in connection with the supply and if applicable, installation of the Goods (Personal Information), Lancom will:

(a) take all reasonable steps to ensure that the Personal Information is protected against misuse and loss, and from unauthorised access, modification or disclosure;

(b) will not directly or indirectly use the Personal Information except to the extent necessary to provide the Goods;

(c) must not disclose the Personal Information whether directly or indirectly to any person without the prior consent of the Customer; and

(d) may disclose the Personal Information to its personnel to the extent required for the purpose of supplying the Goods.

17.  CONFIDENTIALITY  

17.1  The Customer undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customer, clients or suppliers of Lancom, except as permitted by clause 17.2.

17.2 The Customer may only disclose Lancom’s confidential information if required by law and provided that prior to such disclosure and to the extent that it is permitted to do so by law, the Customer notifies Lancom of the nature and circumstances of disclosure.

17.3  No party shall use any of the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

 

18.  LIMITATION OF LIABILITY  

18.1  Neither party to this Agreement shall have any liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss arising under or in connection with this Agreement.

18.2 Lancom’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the Price payable by the Customer for the supply and if applicable installation of the Goods, under this Agreement. 

18.3 Lancom makes no representation or warranty in relation to existing structures on the Customer’s property and is not liable to the Customer in respect of any loss, arising following the installation of the Goods into such existing structures, whether under contract, in tort (including negligence), in equity, statute or otherwise.

18.4  The rights of the Customer under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

18.5 To the maximum extent permitted by law, on and from the date occurring six years from the later of, the supply of the Goods to the Customer’s property and (if applicable) the installation of the Goods at the Customer’s property, the Customer (and anyone claiming through the Customer):

(a) releases Lancom from all liability in respect of the supply and if applicable installation of, the Goods, whether under contract, in tort (including negligence), in equity, under statute or otherwise; and

(b) is not entitled to commence any action, claim or proceeding of any kind whatsoever against Lancom (or any employee of Lancom) arising out of or in connection with this Agreement.

 

19.  TERMINATION  

19.1 The Customer may terminate this Agreement prior to the Delivery Date by giving written notice to Lancom, such written notice being received by Lancom no less than 10 Business Days prior to the Delivery Date and any amount paid by the Customer to Lancom under clause 8.3(a) will be non-refundable.

19.2 Lancom may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer:

(a) fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 20 Business Days after being notified in writing to make such payment; or

(b)   commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 20 Business Days after being notified in writing to do so; or

(c)  repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or

(d)  suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts; or

(e) is insolvent, placed into liquidation or made bankrupt (as applicable).

 

20.  CONSEQUENCES OF TERMINATION  

20.1  On termination or expiry of this Agreement, the following clauses shall continue in force: clause 14 (Intellectual Property Rights), clause 17 (Confidentiality), clause 18 (Limitation of liability), clause 20 (Consequences of termination), clause 24 (Waiver), clause 26 (Severance), clause 33 (Dispute resolution), clause 34 (Governing law), clause 35 (Jurisdiction) and clause 36 (Definitions).

20.2  Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

 

21.  FORCE MAJEURE  

21.1  Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:

(a)  acts of God, flood, drought, earthquake or other natural disaster;

(b)  epidemic or pandemic;

(c)  terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

(d)  nuclear, chemical or biological contamination or sonic boom; and

(e)  any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;

(f)  collapse of buildings, fire, explosion or accident; [and]

(g) any labour or trade dispute, strikes, industrial action or lockouts;

(h) non-performance by suppliers or subcontractors; and

(i)  interruption or failure of utility service.

21.2  Provided it has complied with clause 21.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

21.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

21.4 The Affected Party shall:

(a)  as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party  of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and

(b)  use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

20.5  If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 60 days, the party not affected by the Force Majeure Event may terminate this Agreement by giving no less than 10 Business Days’ written notice to the Affected Party.

 

22.  ASSIGNMENT

22.1  The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.

22.2  Lancom may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement, provided that it gives prior written notice of such dealing to the Customer.

 

23.  VARIATION  

Subject to clause 7, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

24.  WAIVER  

24.1 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

24.2  A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

24.3  A party that waives a right or remedy provided under this Agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.

 

25.  RIGHTS AND REMEDIES  

The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

 

26.  SEVERANCE  

26.1  If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

26.2  If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

27. CONTRA PROFERENTUM

In the interpretation of this Agreement, no rule of construction applies to the disadvantage of one party on the basis that it put forward the Agreement or any part of it.

 

28.  ENTIRE AGREEMENT  

28.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

 

29.  RELATIONSHIP  

29.1  Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

29.2  Each party confirms it is acting on its own behalf and not for the benefit of any other person.

 

30.  THIRD PARTY RIGHTS  

No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

 

31.  NOTICES  

31.1 Any notice or document to be given or served under this Agreement shall be in writing and given or served:

(a)  by pre-paid post addressed to the registered office (if a company) or its principal place of business of the party intended to be served (in any other case) and will be treated as served 3 Business Days after the date of posting; or

(b)  by personal delivery and will be treated as served when delivered to the addressee; or

(c)  by email and will be treated as served at the time the person effecting email transmission receives an acknowledgment of receipt from the recipient or a read receipt (automated out of office replies will not constitute such an acknowledgement).

31.2  Any notice or other document given or served on a day that is not a Business Day of after 5pm on a Business Day, will be treated as given or served at the start of the next Business Day.

31.3 Any notice or document to be given or served under this Agreement may be signed by any attorney, officer, employee or agent authorised from time to time by the party serving or giving that notice or document.

 

32.  COUNTERPARTS  

This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

 

33.  DISPUTE RESOLUTION

33.1  If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then except as expressly provided in this Agreement, the parties shall follow the procedure set out in this clause:

(a)  the parties will use their best endeavours and in good faith resolve the Dispute themselves;

(b) if the parties cannot resolve the Dispute themselves within a reasonable time (but in any event within 20 Business Days or such longer period as may be expressly agreed by the parties) then either party may require the Dispute be referred to mediation by serving written notice on the other. 

(c) If the Dispute is not settled within 20 Business Days of the date of either Party’s notice requiring mediation issued pursuant to clause 33.1(b) (or such longer or shorter period as may be expressly agreed by the parties), then either Party may refer the dispute to arbitration by a sole arbitrator under the provisions of the Arbitration Act 1996 and the substantive law of New Zealand. The arbitrator will be appointed by agreement between the parties within 15 Business Days of written notice of referral by the referring party to the other or, failing agreement, by the President of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) or its successor body, or any nominee of the President. In either case, the arbitrator must not be a person who has participated in any informal dispute resolution procedure in respect of the dispute.

33.2  Nothing in this clause 33 shall prevent or prejudice the ability of either Party to apply to any court in order to seek interim injunctive relief against the other.

 

34.  GOVERNING LAW  

This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of New Zealand.

 

35.  JURISDICTION  

Each party irrevocably agrees that the courts of New Zealand shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

 

36.  DEFINITIONS

The following definitions apply in this Agreement.

Agreement: (in order of precedence) the Quotation, these Standard Terms and Conditions of Sale and any schedules and attachments to a Quotation.

Applicable Laws: all applicable laws, statutes and regulations from time to time in force.

Business Day: a calendar day other than a Saturday, Sunday or public holiday (in Auckland) or any day falling within the period from 24 December to 5 January, both inclusive, irrespective of the days on which work is actually carried out.

Delivery Date: the date for delivery of the Goods as specified in the relevant Quotation.

Goods the goods supplied under this Agreement. 

Intellectual Property Rights or IPR: all patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Lancom means ICM Aluminium Limited (NZBN 9429042135807) trading as Lancom Commercial.

Lancom IPR: all IPR owned by or licensed to Lancom, as at the date of this Agreement, and in the future that relates to Lancom’s business, the Goods and any variation, modification or improvement of such IPR.

Price: the total price for the supply and if applicable installation of, the Goods as stated in the Quotation.

Quotation: Lancom’s quotation for the supply and if applicable installation, of the Goods by Lancom and includes any amendment or modification.

Variation Order:  has the meaning given in clause 7.1.

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