1.1
“
Heat
Treatments
”
shall mean Heat Treatments
Limited, or any agents or employees thereof.
1.2
“Customer” shall mean the Customer, any person acting on behalf of and with the
authority of the Customer, or any person purchasing products and
services from Heat
Treatments.
1.3.1 all
Products
of the general description specified on the front of this agreement and supplied
by Heat
Treatments to the Customer; and
1.3.2 all
Products
supplied by Heat
Treatments to the Customer; and
1.3.3 all
inventory of the Customer that is supplied by Heat Treatments;
and
1.3.4
all Products
supplied by Heat
Treatments and further identified in any invoice issued by Heat
Treatments to the Customer, which invoices are deemed to be
incorporated into and form part of this agreement; and
1.3.5
all Products that are marked as having been supplied by Heat Treatments
or that are stored by the Customer
in a manner that enables them to be identified as having been supplied by Heat
Treatments; and
1.3.6 all
of the Customer’s present and after-acquired Products
that Heat
Treatments has performed work on or to or in which goods or materials
supplied or financed by Heat
Treatments have been attached or incorporated.
1.3.7 The
above descriptions may overlap but each is independent of and does not limit the
others.
1.4
“
Products
and Services
”
shall mean all products, goods, services and advice provided by Heat
Treatments to the Customer
and shall include without limitation
the
design and supply of manufactured products and metal processing services and all
advice and services
and all charges for labour, hire charges, insurance charges, or any fee or
charge associated with the supply of Products
and Services by Heat
Treatments to the Customer.
1.5
“Price” shall mean the cost of the Products
and Services as agreed between Heat
Treatments and the Customer and includes all disbursements eg charges Heat
Treatments pay to others on the Customer's
behalf subject to clause 4
of this contract.
2.1
Any instructions received by Heat
Treatments from the Customer for the supply of Products
and Services shall constitute a binding contract and acceptance of the
terms and conditions contained herein.
3.
COLLECTION AND USE OF INFORMATION
3.1
The Customer
authorises Heat
Treatments to collect, retain and use any information about the Customer,
for the purpose of assessing the Customer’s
credit worthiness, enforcing any rights under this contract, or marketing any Products
and Services provided by Heat
Treatments to any other party.
3.2
The Customer
authorises Heat
Treatments to disclose any information obtained to any person for the
purposes set out in clause 3.1.
3.3
Where the Customer is a natural person the authorities under
clauses 3.1
and 3.2
are authorities or consents for the purposes of the Privacy Act 1993.
4.1
Where no price is stated in writing or agreed to orally the Products
and Services shall be deemed to be sold at the current amount as such Products
and Services are sold by Heat
Treatments at the time of the contract.
4.2
The price may be increased by the amount of any reasonable increase in
the cost of supply of the Products
and Services that is beyond the control of Heat Treatments
between the date of the contract and delivery of the Products
and Services.
5.1
Unless otherwise agreed payment for Products
and Services shall be made in full on or before the 20th day
of the month following the date of the invoice (“the due date”).
5.2
Interest may be charged on any amount owing after the due date at the
rate of 2.5% per month or part month.
5.3
Any expenses, disbursements and legal costs incurred by Heat
Treatments in the enforcement of any rights contained in this contract
shall be paid by the Customer, including any reasonable solicitor’s fees
or debt collection agency fees.
5.4
Receipt of a cheque, bill of exchange, or other negotiable instrument
shall not constitute payment until such negotiable instrument is paid in full.
6.1
Where a quotation is given by Heat
Treatments for Products
and Services:
6.1.1 Unless
otherwise agreed the quotation shall be valid for sixty (60) days from the date
of issue; and
6.1.2 The
quotation shall be exclusive of goods and services tax unless specifically
stated to the contrary;
6.1.3 Heat
Treatments reserve the right to alter the quotation because of
circumstances beyond its control such as raw material price stability and
currency variation.
6.2
Where Products
and Services are required in addition to the quotation the Customer agrees to pay for the additional cost of
such Products
and Services.
7.1
Any Products
and Services remain at Heat
Treatments' risk until delivery to the Customer.
7.2
Delivery of Products
shall be deemed complete when Heat
Treatments gives possession of the Products
directly to the Customer or possession of the Products
is given to a carrier, courier, or other bailee for purposes of transmission to
the Customer.
8.1
The
Customer
authorises Heat
Treatments to contract either as principal or agent for the provision of Products
and Services
that are the matter of this contract.
8.2
Where Heat
Treatments enters into a contract of the type referred to in clause 8.1
it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that
contract.
9.
TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
9.1
Title in any Products
supplied by Heat
Treatments passes to the Customer only when the Customer has made payment in full for all Products
provided by Heat
Treatments and of all other sums due to Heat Treatments
by the Customer on any account whatsoever.
Until all sums due to Heat
Treatments by the Customer have been paid in full, Heat
Treatments has a security interest in all Products.
9.2
If the Products
are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly
process by the Customer or any third party, title in the Products
shall remain with Heat
Treatments until the Customer has made payment for all Products,
and where those Products
are mixed with other property so as to be part of or a constituent of any
new Products,
title to these new Products
shall deemed to be assigned to Heat
Treatments as security for the full satisfaction by the Customer of the full amount owing between Heat
Treatments and Customer.
9.3
The Customer
gives irrevocable authority to Heat
Treatments to enter any premises occupied by the Customer
or on which Products
are situated at any reasonable time after default by the Customer
or before default if Heat
Treatments believes a default is likely and to remove and repossess any Products
and any other property to which Products
are attached or in which Products
are incorporated. Heat
Treatments shall not be liable for any costs, damages, expenses or losses
incurred by the Customer
or any third party as a result of this action, nor liable in contract or in tort
or otherwise in any way whatsoever unless by statute such liability cannot be
excluded. Heat
Treatments may either resell any repossessed Products and
credit the Customer’s
account with the net proceeds of sale (after deduction of all repossession,
storage, selling and other costs) or may retain any repossessed Products
and credit the Customer’s
account with the invoice value thereof less such sum as Heat
Treatments reasonably determines on account of wear and tear,
depreciation, obsolescence, loss or profit and costs.
9.4
Where Products
are retained by Heat
Treatments pursuant to clause 9.3
the Customer
waives the right to receive notice under s.120 of the Personal Property
Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
9.5
The following shall constitute defaults by the Customer:
9.5.1 Non
payment of any sum by the due date.
9.5.2 The
Customer intimates that it will not pay any sum by
the due date.
9.5.3 Any
Products
are seized by any other creditor of the Customer
or any other creditor intimates that it intends to seize Products.
9.5.4 Any
Products
in the possession of the Customer are materially damaged while any sum due
from the Customer to Heat
Treatments remains unpaid.
9.5.5 The
Customer is bankrupted or put into liquidation or a
receiver is appointed to any of the Customer’s
assets or a landlord distains against any of the Customer’s
assets.
9.5.6 A
Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
9.5.7 Any
material adverse change in the financial position of the Customer.
10.
SECURITY INTEREST FOR
SERVICE PROVIDERS
10.1 The
Customer gives Heat
Treatments a security interest in all of the Customer’s present and after-acquired property that
Heat
Treatments has performed services on or to or in which goods or materials
supplied or financed by Heat
Treatments have been attached or incorporated.
11.1 The
Customer agrees that Heat Treatments
may exercise a general lien against any Products
and Services
or property belonging to the Customer
that is in the possession of Heat
Treatments for all sums outstanding under this contract and any other
contract to which the Customer
and Heat
Treatments are parties.
11.2 If
the lien is not satisfied within seven (7) days of the due date Heat
Treatments may, having given notice of the lien at its option either:
11.2.1Remove such
Products
and Services and store them in such a place and in such a manner as Heat
Treatments shall think fit and proper and at the risk and expense of the Customer; or
11.2.2Sell such
Products
and Services or part thereof upon such terms as it shall think fit and apply the
proceeds in or towards discharge of the lien and costs of sale without being
liable to any person for damage caused.
12.1 No
claim relating to Products
and Services will be considered unless made within seven (7) days of
delivery.
13.2 Except
as otherwise provided by clause 13.1
Heat
Treatments shall not be liable for:
13.2.1Any loss or damage of any
kind whatsoever, arising from the supply of Products and Services by Heat
Treatments to the Customer (including any damage to the Customer’s property
caused during the treatment process or at any time such property is in the
possession of Heat Treatments) and including consequential loss whether suffered
or incurred by the Customer or another person and whether in contract or
tort (including negligence) or otherwise and irrespective of whether such loss
or damage arises directly or indirectly from Products
and Services provided by Heat
Treatments to the Customer; and
13.2.2The
Customer shall indemnify Heat Treatments
against all claims and loss of any kind whatsoever however caused or arising and
without limiting the generality of the foregoing of this clause whether caused
or arising as a result of the negligence of Heat Treatments
or otherwise, brought by any person in connection with any matter, act,
omission, or error by Heat
Treatments its agents or employees in connection with the Products
and Services.
14.1
Manufacturer’s warranty applies where applicable.
14.2 Any
written warranty that Heat
Treatments provide to the Customer
will also form part of these terms and conditions of trade.
14.3 Heat
Treatments warrants that the heat treatment and other incidental work to be
performed by Heat Treatments will be conducted in a good and workmanlike manner
and in accordance with specifications supplied by the Customer.
15.
PERSONAL
GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
15.1 If
the Customer is a company or trust, the director(s) or
trustee(s) signing this contract, in consideration for Heat Treatments
agreeing to supply Goods
and grant credit to the Customer at their request, also sign this contract in
their personal capacity and jointly and severally personally undertake as
principal debtors to Heat
Treatments the payment of any and all monies now or hereafter owed by the
Customer to Heat
Treatments and indemnify Heat
Treatments against non-payment by the Customer. Any
personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities
and obligations contained in this contract.
The signatories and Customer shall be jointly and severally liable under
the terms and conditions of this contract and for payment of all sums due
hereunder.
16.
COPYRIGHT AND INTELLECTUAL PROPERTY
16.1 Heat
Treatments, owns and has copyright in all work, software, systems,
solutions, drawings, designs, specifications, electronic data and documents
produced by Heat
Treatments in connection with the Products
and Services
provided pursuant to this contract and the client may use the Products
and Services
only if paid for in full and for the purpose for which they were intended and
supplied by Heat
Treatments.
16.2 Where
Heat Treatments has followed a design or instruction furnished by or given by
the Customer, the Customer shall indemnify Heat Treatments against all damages,
penalties, costs and expenses of Heat Treatments or in respect of which Heat
Treatments may become liable through any work required to be done in accordance
with these instructions involving an infringement of a patent, trademark,
registered design or common law right.
17.1 The
guarantees contained in the Consumer Guarantees Act 1993 are excluded where the
Customer acquires Products
and Services from Heat
Treatments for the purposes of a business in terms of section 2 and 43 of
that Act.
18.1 Heat
Treatments shall not be liable for delay or failure to perform its
obligations if the cause of the delay or failure is beyond its control.
18.2 Failure
by Heat
Treatments to enforce any of the terms and conditions contained in this
contract shall not be deemed to be a waiver of any of the rights or obligations Heat
Treatments has under this contract.
18.3
If any provision of this contract shall be invalid, void or illegal or
unenforceable the validity existence, legality and enforceability of the
remaining provisions shall not be affected, prejudiced or impaired.