INTERPRETATION

a.    “Zoomsoft” means the company Zoomsoft NZ Ltd, including employees, contractors and agents, and its successors and assigns;

b.    “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 Zoomsoft;

c.     “Goods” means all goods and products supplied by Zoomsoft to the Customer from time to time;

d.    “Services” means all the services supplied by Zoomsoft to the Customer;

e.    “Premises” includes, without limitation, any house, building, building site or vehicle;

f.      “Hirer” means the person, company or other legal entity hiring equipment from Zoomsoft. Where the context permits, it includes Hirer’s employees and contractors.

g.    “Rental period” means the billing period.

h.    “Rates” means the rates notified by Zoomsoft to Hirer from time to time or stated in the agreement between Zoomsoft and Hirer.

i.      “Use” means use, installation, removal, storage, maintenance or transport by or on behalf of Hirer.

j.      “Equipment” means the goods hired by Hirer from Zoomsoft.

k.      “Agreement” means the contract between ZOOMSOFT and Hirer in relation to the hire of Equipment, which is governed by these Terms and Conditions together with the Hirer’s Trade Account Application and quotation provided by ZOOMSOFT (if any).

l.      Nothing in these Terms and Conditions restrict or modify any remedy available by law (including the Fair Trading Act 1986 and the Consumer Guarantees Act 1993) where that law precludes any restriction or modification being made.

 

PURCHASING GOODS AND SERVICES FROM ZOOMSOFT

 

1)    Quotation

a)    The quotation provided by Zoomsoft to a Customer shall be valid for thirty (30) days from the date of issue and thereafter shall be deemed to be withdrawn;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 itemized 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 Zoomsoft has agreed in writing to such variation; and

e)    Zoomsoft reserves the right to alter the quotation because of circumstances beyond its control.

 

2)    Acceptance

a)    Any instructions received by Zoomsoft from the Customer for the supply of Goods and Services and/or, as the case may be, the signing of any quotation provided by Zoomsoft to the Customer shall constitute acceptance of these terms and conditions of trade.

b)    Any use of a trade account with Zoomsoft shall constitute acceptance of these terms and conditions of trade.

 

3)    Price and payments

a)    The price shall be either:

i)      The price stated in Zoomsoft’s quotation; or

ii)     If there is no quotation, the cost of the Goods and Services calculated using Zoomsoft's prices current at the time of invoice; or

 

b)    Payment of goods and services purchased from Zoomsoft by the Customer is to be made either:

i)      Fifty percent (50%) of the price with at least 4 weeks before Zoomsoft shall start the performance of Services and the rest after completion of performance of the Services where a quotation is issued by Zoomsoft and accepted by the Customer; or

ii)     In full, on delivery of the Goods or completion of performance of the Services in accordance with the payment terms specified on any invoice issued by Zoomsoft.

iii)    The Customer will make all payments due to Zoomsoft  in full without deduction or set off by way of cash, cheque, bank cheque, direct credit, or by any other method agreed by Zoomsoft. Receipt by Zoomsoft 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 honored or cleared.

iv)   Any deposit paid is non-refundable.

v)    Notwithstanding that Zoomsoft retains ownership of the Goods until payment is made in full.

vi)   All Goods and Services are sold subject to goods and services tax.

 

 

4)    Supply and Delivery

a)    The Customer may place orders for Goods or Services and Zoomsoft will use its reasonable endeavors to deliver all Goods and provide Services within the agreed time.  Zoomsoft has no obligation to deliver any Goods or provide any Services unless Zoomsoft accepts the order.

b)    The anticipated time of supply will be extended if, for reasons outside of Zoomsoft's reasonable control, Goods or Services are not able to be procured, or if Zoomsoft is not able to obtain unimpeded access to the relevant premises for the purpose of deliver the Goods or performance of the Services.

c)    Zoomsoft 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 Zoomsoft in delivering and/or completing the Goods and Services

d)    If it becomes impracticable for Zoomsoft to supply any Goods or Service ordered by the Customer, Zoomsoft shall use reasonable endeavors 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 Zoomsoft'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 Zoomsoft in the event that it is impracticable for Zoomsoft to supply a product or service.

 

5)    Warranties

a)    Where the Goods have the benefit of a third party warranty, Zoomsoft 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.

b)    Zoomsoft 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 Zoomsoft does not in any way extend or limit the benefit of a manufacturer's warranty (if any) under clause 5.a

c)    To the extent legally permitted, and subject only to clauses 5.a, 5.b and 6:

i)      All warranties and representations implied by customary practice, at law, or under statute, are excluded;

ii)     Zoomsoft’s liability in connection with any Goods or Service is limited (at Zoomsoft'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;

iii)    Zoomsoft 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 Zoomsoft or any act or omission of Zoomsoft.

 

6)    Consumer Guarantees Act 1993

a)    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.

b)    In any event, Zoomsoft's liability under any claim shall not exceed the cost of the Goods and Services. Zoomsoft does not make or give any express guarantees (as defined in the CGA).

c)    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.

 

HIRE EQUIPMENT FROM ZOOMSOFT

 

1)    Rates and Rental Period

a)    For the entire Rental Period the Hirer must pay a fee calculated in accordance with the Rates

b)    The payment must be maid:

i)      In full for the entire Rental Period and Installation/Removal of Equipment fees (if any) with at least 4 weeks before the first day of the Rental Period; or

ii)     In the manner and in accordance with the payment terms specified on any invoice issued by Zoomsoft

c)    The Hirer is not permitted to claim a reduction in hire fees for Equipment returned before the end of the Rental Period

2)    Delivery, Pick up, Installation and Removal

a)    Delivery, installation, dismantling and pickup services may be charged as an extra fee and will be quoted

3)    Use of Equipment

a)    Hirer must ensure that the Equipment is used strictly in accordance with Zoomsoft’s instructions and any procedures recommended by Zoomsoft.

b)    Hirer must ensure that the equipment is at all-time plugged in a reliable power source and that there is a reliable internet connection on the premises.

c)    Hirer must at all times keep the Equipment in good condition and must not, without Zoomsoft’s prior written consent alter or make additions to the Equipment, or deface, remove or conceal any Zoomsoft logo, identifying mark or number, or indication of Zoomsoft’s ownership of the Equipment

d)    Hirer must at all times ensure that the Equipment is Used in a safe manner, and must not deliberately damage, abuse or mistreat Equipment or allow Equipment to be deliberately damaged, abused, or mistreated

e)    If any damage, loss, theft or destruction of the Equipment occurs, whether Hirer was responsible or not, Hirer must, immediately notify Zoomsoft and provide full details of the damage, loss theft or destruction

f)     Hirer must ensure that Use of the Equipment is at all times strictly in accordance with all applicable laws and any relevant industry usage, custom and standards for goods similar to the Equipment

g)    If Equipment is collected in a condition which in the reasonable opinion of Zoomsoft renders it unusable for hire, or if Equipment is stolen or missing, Hirer must pay Zoomsoft on demand the cost of replacement or repair of the Equipment. In no circumstances will title to the Equipment or any part of it pass to Hirer

h)    Hirer must obtain and maintain, at its own expense, any insurance, permit or license that may be required under any law or by any statutory or other authority for the Use of the Equipment, including its installation or removal. Without limiting Hirer’s obligations under this clause, Hirer must obtain all permits required under the Building Act 2004 and any relevant planning, environment or health and safety legislation, and must ensure that its personnel are appropriately inducted, trained and supervised so as to ensure the safe and lawful Use of the Equipment

i)      Hirer must expressly inform Zoomsoft of the location of the Equipment during the Rental Period.

 

4)    Zoomsoft’s rights

a)    Zoomsoft may terminate this Agreement and recover the Equipment at any time on 7 days written notice to Hirer. If Zoomsoft exercises this termination right, Zoomsoft will refund Hirer for any hire fees received by Zoomsoft which relate to Equipment hired outside the Rental Period, less a deduction for reasonable expenses incurred by Zoomsoft in connection with the recovery and/or transport of the Equipment

b)    Zoomsoft may enter any premises where the Equipment or any part of it is, or believed to be located for the purpose of:

i)      inspecting or testing the Equipment

ii)     protecting ZOOMSOFT’s rights or interest in the Equipment

iii)    ensuring compliance with any law

iv)   exercising its right to take possession or control of the Equipment

c)    If Hirer in any way fails to perform or breaches any provision of this Agreement, becomes insolvent or in Zoomsoft’s reasonable opinion is likely to become insolvent, Zoomsoft may at its discretion do all or any of the following:

i)      retake possession of the Equipment, holding Hirer fully liable for all hire fees; and

ii)     require Hirer to pay liquidated damages equal to 2 weeks’ hire fees (which the parties agree to be a reasonable estimate of the costs incurred by Zoomsoft in order to retake possession

 

INTELLECTUAL PROPERTY

The Customer/Hirer acknowledges that Zoomsoft (or its supplier) is the sole owner of the copyright in the Goods.  The Customer/Hirer 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 Zoomsoft (or its supplier) as owner of the intellectual property

LIABILITY AND INDEMNITY

1)    The Customer/Hirer warrants that it has full authority to authorize Zoomsoft to install any Goods at the direction of the Customer/Hirer’s.  The Customer/Hirer indemnifies Zoomsoft against the consequences of any claim by any third party following installation of the Goods at the direction of the Customer/Hirer.  Such indemnity extends to reasonable legal costs incurred by Zoomsoft arising out of the claim by the third party

2)    The Customer/Hirer shall provide Zoomsoft 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 Zoomsoft to install such Goods and perform such Services.  Zoomsoft may make further charges to the Customer/Hirer should there be any delay, or additional attendances as a consequence of lack of access to facilities or lack or adequate facilities

3)    The CustomerHirer will provide Zoomsoft with reasonable notice in advance if it is necessary for Zoomsoft to co-ordinate with any other tradespersons in connection with the installation of Goods or performance of Services

4)    The Hirer is liable for all costs, expenses, damages or loss (including consequential loss) whether caused by Hirer or any other third party, arising directly or indirectly out of the Use of the Equipment

 

TITLE AND SECURITY

1)    The title of any Goods and Services supplied by Zoomsoft 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 Zoomsoft by the Customer on any other account whatsoever.

2)    Title of Equipment hired from Zoomsoft remains with Zoomsoft at all times. Hirer must not grant or allow to subsist any security interest or encumbrance over the Equipment, or allow Zoomsoft interest and/or title to be adversely affected in any way.

3)    Until all sums due to Zoomsoft have been paid in full Zoomsoft has a security interest in all Goods and Services/Equipment provided to the Customer/Hirer.

 

PRIVACY ACT 1993

1)    The Customer/Hirer irrevocably authorises:

a)    Any person or corporation to provide Zoomsoft such information as Zoomsoft may require in response to any credit enquiry in relation to the Customer/Hirer;

b)    Zoomsoft to collect, retain and use any information about the Customer/Hirer, for the purpose of assessing the Customer/Hirer's creditworthiness or marketing products and services to the Customer/Hirer; and

c)    Zoomsoft to disclose information about the Customer/Hirer, whether collected by Zoomsoft from the Customer/Hirer directly of obtained by Zoomsoft 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/Hirer.

 

2)    Where the Customer/Hirer 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/Hirer shall have the right to request Zoomsoft for a copy of the information about the Customer/Hirer retained by Zoomsoft and the right to request Zoomsoft to correct any incorrect information about the Customer/Hirer held by Zoomsoft.

GENERAL

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.

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.

3)    Zoomsoft may assign its rights under these terms and conditions of trade and under any contract formed with the Customer/Hirer and may sub-contract all or any part of its rights and obligations, in each case without the Customer/Hirer's consent.

4)    Zoomsoft 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 Zoomsoft notifies the Customer/Hirer of such change.

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.