1.1 These Terms and Conditions of Sale apply to all Goods and Services provided by Franchise Australasia Limited (“the Business Advisor”) to the purchaser of those goods or services (“the Client”).
1.2 In the event that other terms and conditions are imported into any contractual documentation between Franchise Australasia Limited and the Client then, unless specifically authorised in writing by a director from Franchise Australasia Limited, these Terms and Conditions of Sale shall prevail.
2.1 Franchise Australasia Limited will not be responsible for errors or omissions due to oversight or to misinterpretation of the Client’s verbal instructions.
2.2 Quotations are only for work according to original specifications. If through the Client’s error, or omission, work has to be redone or alterations or additions to specifications are required, then Franchise Australasia Limited may make an additional charge. In the event that an order is cancelled or suspended by the Client, then Franchise Australasia Limited may immediately require the Client to pay for work done to the date of cancellation or suspension.
2.3 A quotation, unless previously withdrawn, is valid only for 30 days from the date it is given, unless otherwise specifically stated in the quotation form. Following this a new quotation will be required for any goods or services ordered.
2.4 Franchise Australasia Limited reserves the right not to undertake any work which in its opinion is or may be unlawful, offensive, or otherwise inappropriate.
2.5 Where expedited delivery is requested by the Client, then an extra charge may be added to the quoted price.
3.1 The prices of goods or services supplied are as shown on Franchise Australasia Limited’s quotation, acceptance order, invoice, or other document. Franchise Australasia Limited reserves the right to charge for delivery, in addition to the amount shown in the quotation, acceptance of order, or other documents.
3.2 Goods and Services Tax and any other tax duty or impost necessarily incurred (other than Franchise Australasia Limited’s own income tax) in the course of completing the work, shall be payable by the Client in addition to the quoted price, payable upon demand.
3.3 Quoted prices are based on the cost of materials, labour, and services as at the date of the quotation. Should there be any increase in these costs, as are necessarily incurred by Franchise Australasia Limited in completing the order, then such increases may, at Franchise Australasia Limited sole discretion, be added to the quoted price, payable at the same time, and in the same manner as the balance of the quoted price.
4. Payment Terms
4.1 All accounts are payable by 50% Deposit immediately following invoice. With the final balance on completion of the work.
4.2 Progress payments may be required where work is completed over an extended period of time. After work, has been in hand for one month or more, a progress payment of up to 75% of the value of the work completed may be requested. Further progress payments calculated on the same basis may be required to be paid on a monthly basis, until completion of the work.
4.3 Franchise Australasia Limited may allocate any payment received from the Client against any debt owed by the Client, in any manner that Franchise Australasia Limited may decide, notwithstanding any purported allegation by the Client.
5. Default & Consequences of Default
5.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Franchise Australasia Limited’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
5.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Franchise Australasia Limited.
5.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Franchise Australasia Limited from and against all costs and disbursements incurred by Franchise Australasia Limited in pursuing the debt including legal costs on a solicitor and own client basis and Franchise Australasia Limited’s collection agency costs.
5.4 Without prejudice to any other remedies Franchise Australasia Limited may have, if at any time the Client is in breach of any obligation (including those relating to payment) Franchise Australasia Limited may suspend or terminate the supply of goods to the Client and any of its other obligations under the terms and conditions. Franchise Australasia Limited will not be liable to the Client for any loss or damage the Client suffers because Franchise Australasia Limited has exercised its rights under this clause.
5.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00) shall be levied for administration fees which sum shall be payable each month that the debt remains overdue and become immediately due and payable.
5.6 Without prejudice to Franchise Australasia Limited’s other remedies at law Franchise Australasia Limited shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Franchise Australasia Limited shall, whether or not due for payment, become immediately payable in the event that:
a) any money payable to Franchise Australasia Limited becomes overdue, or in Franchise Australasia Limited’s opinion the Client will be unable to meet its payments as they fall due; or
b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
6. Specifications, Delivery and Installation
6.1 Franchise Australasia Limited will use every reasonable endeavour to deliver every order within the time specified (if any) by the Client, but Franchise Australasia Limited will not be liable for any loss or damage sustained, as a consequence of inability to do so, or any delay.
6.2 Unless specifically stated in the body of a quotation, no retentions will be recognised, nor will any other special conditions of contract affect the quotation unless stated.
7.1 Risk in goods will pass to the Client immediately upon delivery. Franchise Australasia Limited will not be responsible for loss or damage to goods in transit, and the Client is required to insure goods against loss or other risks immediately following dispatch.
7.2 Where the Client supplies plans, specifications, plant, goods or materials of any kind these shall be held by Franchise Australasia Limited at the Client’s risk. Whilst all care will be taken by Franchise Australasia Limited, no responsibility is accepted for any damage to materials during such time, and Franchise Australasia Limited reserves the right to dispose of materials if they are not collected by the Client within one calendar month after the work is completed.
8.1 Franchise Australasia Limited and Client agree that ownership of goods supplied shall not pass until the Client has paid Franchise Australasia Limited all amounts owing for the particular goods and Franchise Australasia Limited’s other rights and remedies in respect of this security interest are as specified in Clause 11.10 herein.
8.2 Receipt by Franchise Australasia Limited of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Franchise Australasia Limited’s ownership or rights in respect of the goods shall continue.
8.3 It is further agreed that:
a) where practicable the goods and services shall be kept separate and identifiable until Franchise Australasia Limited shall have received payment and all other obligations of the Client are met; and
b) until such time as ownership of the goods shall pass from Franchise Australasia Limited to the Client, Franchise Australasia Limited may give notice in writing to the Client to return the goods or any of them to Franchise Australasia Limited. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the goods shall cease; and
c) the Client is only a bailee of the goods and until such time as Franchise Australasia Limited has received payment in full for the goods then the Client shall hold any proceeds from the sale or disposal of the goods, up to and including the amount the Client owes to Franchise Australasia Limited for the goods, on trust for Franchise Australasia Limited; and
d) until such time that ownership in the goods passes to the Client, if the goods are converted into other products, the parties agree that Franchise Australasia Limited will be the owner of the end products; and
e) where any amount owed between the Client and Franchise Australasia Limited is overdue, then Franchise Australasia Limited may enter any premises at which if believes its goods are located, to seize those goods, and to dispose of them as Franchise Australasia Limited thinks fit, to apply such proceeds towards the amount then outstanding to Franchise Australasia Limited. The Client hereby irrevocably authorises Franchise Australasia Limited, and any of its agents or servants, to enter such premises, to locate, inspect, and/or seize such goods.
9.1 Whilst all care and attention is undertaken by Franchise Australasia Limited to deliver and/or install goods of the highest quality, and to ensure that all components (including media, artwork, design and other materials) are purchased from reputable manufacturers, Franchise Australasia Limited does not guarantee the manufacture of such items. Where any defect or alleged defect is beyond the ability of Franchise Australasia Limited to control quality, Franchise Australasia Limited has no liability. Any defects due to faulty workmanship must be notified within 7 days after delivery. Any such defects will, at the discretion of Franchise Australasia Limited, be repaired or replaced free of charge.
9.2 Other than as provided in Sub clause 9.1 hereof all warranties, representations or promises howsoever made, whether express, or implied by law are excluded and negated. In particular, where the Client acquires or holds itself out as acquiring, the goods for the purposes of a business the Consumer Guarantees Act 1993 will not apply.
9.3 Notwithstanding any other provision herein the total liability of Franchise Australasia Limited will at all times be limited to replacing goods or materials or workmanship which is defective to the value received by Franchise Australasia Limited under the relevant contract. No claim for consequential losses or damages of any kind will apply.
9.4 The Client will indemnify and hold harmless Franchise Australasia Limited against any losses, liabilities, costs or actions suffered or incurred as a consequence of any third party claiming that work undertaken by Franchise Australasia Limited is offensive or illegal, in breach of any intellectual property right, or other right which such third party may have.
10.1 If the Client is at any time in default of any of its obligations, covenants or agreements under these Terms and Conditions of Sale, then Franchise Australasia Limited may, by notice in writing to the Client, terminate any contract.
10.2 In such event the Client shall be liable to pay for the cost of any work (including preliminary work) undertaken at that time. Such cost shall be payable as a debt due immediately upon demand.
11.1 Applicable Law/Unenforceability
11.1.1 The law applying to any contract arising between Franchise Australasia Limited and the Client shall be the law of New Zealand.
11.1.2 In the event that any provision contained in these Terms and Conditions, or in any other collateral agreement or document between Franchise Australasia Limited and the Client is deemed illegal or unenforceable, then such provision shall be deemed to be excluded therefrom, but only to the extent required to remedy the illegality or unenforceability, and these terms and conditions, and such collateral document shall in all other respects apply in accordance with their stated terms.
11.2.1 Franchise Australasia Limited is entitled at any time to assign to any other party all or any part of a debt which is owing to Franchise Australasia Limited.
11.2.2 Franchise Australasia Limited may also assign or sub-contract any part of the work which is to be performed under any contract
11.2.3 In respect of such assignment (in either case) the assignee shall be entitled to the full rights of Franchise Australasia Limited previously applying.
11.3.1 Franchise Australasia Limited (or any such assignee) shall be entitled to set off against any monies which may be or may be alleged to be owing to the Client, the amount of any debt incurred or payable by the Client to Franchise Australasia Limited, or to such assignee.
11.4.1 All rights, powers and entitlements of Franchise Australasia Limited at law in respect of any contract shall remain in full force, notwithstanding any neglect, forbearance, delay, or waiver by Franchise Australasia Limited in enforcing them.
11.4.2 In the event that Franchise Australasia Limited waives or is deemed to have waived any condition, then unless such waiver is in writing and signed by the director of Franchise Australasia Limited, no such waiver shall be accepted. If
accepted, such waiver shall apply only to the extent that it is specifically given, and shall not be deemed to affect any other dealing or matter between the Client and Franchise Australasia Limited.
11.5 Authority to Sign
11.5.1 The person signing any quotation on behalf of the Client acknowledges that they have authority to bind the Client.
11.5.2 In the event that, due to alleged deficiency in such authority, the Client is not liable then the person signing will be personally liable for payment of the debt arising.
11.6 Intellectual Property Rights
11.6.1 Unless it is specifically agreed in writing to the contrary Franchise Australasia Limited retains all intellectual property rights, including copyright, patents, registered designs, or protection of confidential information in respect of any works undertaken by Franchise Australasia Limited for the Client.
11.6.2 The Client will at all times keep Franchise Australasia Limited advised of any infringement or potential infringement by a third party of Franchise Australasia Limited’s intellectual property rights.
11.6.3 The Client will also immediately advise Franchise Australasia Limited of any alleged infringement by Franchise Australasia Limited of a third party’s intellectual property rights. The Client will indemnify and hold harmless Franchise Australasia Limited against any losses, costs, actions or liabilities suffered or incurred as a consequence of such infringement or alleged infringement.
11.7 Right of Variation
11.7.1 Franchise Australasia Limited reserves the right at any time to vary these Terms and Conditions of Sale, by notification to its customers.
11.8.1 In the event of any dispute arising between Franchise Australasia Limited and the Client, such dispute shall in the first instance be referred to mediation for resolution.
11.8.2 In the event that resolution by such manner is not achieved to the satisfaction of both parties within 30 days of referral to mediation, then either party may take legal action to resolve the dispute.
11.8.3 Nothing in this clause prevents Franchise Australasia Limited from taking legal action to enforce payment of any debt due, nor where required to seek interlocutory or injunctive relief.
11.9 Privacy Act
11.9.1 In relation to the Privacy Act 1993 the Client acknowledges that:
a) Personal information collected or held by Franchise Australasia Limited may be held, used or disclosed for any of the following purposes: administering (whether directly or indirectly) contracts or enforcing rights under contracts, marketing goods and services from time to time (including through Franchise Australasia Limited’s Office or any other ofFranchise Australasia Limited offices), ascertaining at any time the Client’s creditworthiness, and obtaining credit reports, character references or credit statements, enabling Franchise Australasia Limited to notify any credit agency of any application for credit or default on
any obligation of the Client to Franchise Australasia Limited, and enabling Franchise Australasia Limited to provide such personal information to any credit agency. Also, enabling Franchise Australasia Limited to communicate with the Client for any purpose.
b) Such personal information (where applicable) is collected by and will be held by Franchise Australasia Limited whose address is specified in the quotation. The Client has the right under the Privacy Act to obtain access to, and request correction of, any personal information held by Franchise Australasia Limited.
c) The Client authorises Franchise Australasia Limited at any time to obtain from any person or entity any information which Franchise Australasia Limited requires to process and/or accept any application for credit.
d) The Client authorises any person to release to Franchise Australasia Limited for the purpose of establishing the Client’s creditworthiness any personal information that person holds concerning the Client.
e) If the Client fails to provide any information requested by Franchise Australasia Limited in respect of any application for credit, such credit may not be provided.
11.10 Personal Property Securities Act (“PPSA”)
11.10.1 In respect of the security interest created by Clause 8.1 herein and upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all goods previously supplied by Franchise Australasia Limited to the Client (if any) and all goods that will be supplied in the future by Franchise Australasia Limited to the Client.
11.10.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Franchise Australasia Limited may reasonably require registering a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Franchise Australasia Limited for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of Franchise Australasia Limited; and
(d) immediately advise Franchise Australasia Limited of any material change in its business practices of selling the goods which would result in a change in the nature of proceeds derived from such sales.
11.10.3 Franchise Australasia Limited and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
11.10.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.10.5 Unless otherwise agreed to in writing by Franchise Australasia Limited, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.10.6 If Franchise Australasia Limited at any time does not have priority over all secured parties in relation to any goods then, pursuant to Section 107(1) of the PPSA, for the purposes of dealing with those goods the Client and the Business
Advisor specifically contract out of Sections 108 and 109 of the PPSA, to the extent of replacing the words “a secured party with priority over all other secured parties”, in each case, with “Franchise Australasia Limited”.
11.10.7 The Client shall unconditionally ratify any actions taken by Franchise Australasia Limited under clauses 11.10.1 to 11.10.6.