1. DEFINITIONS
1.1. “Height Access Technology” shall mean Height Access Technology Limited, or any agents or employees thereof.
1.2. “Client” shall mean the Client, any person acting on behalf of and with the authority of the Client, or any person purchasing Products and Services from Height Access Technology.
1.3. “Products” shall mean:
1.3.1. all Products of the general description specified on the front of this agreement and supplied by Height Access Technology to the Client; and
1.3.2. all Products supplied by Height Access Technology to the Client; and
1.3.3. all inventory of the Client that is supplied by Height Access Technology; and
1.3.4. all Products supplied by Height Access Technology and further identified in any invoice issued by Height Access Technology to the Client, 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 Height Access Technology or that are stored by the Client in a manner that enables them to be identified as having been supplied by Height Access Technology; and
1.3.6. all of the Client’s present and after-acquired Products that Height Access Technology has performed work on or to or in which goods or materials supplied or financed by Height Access Technology 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 Height Access Technology to the Client and shall include without limitation all height work, including industrial rope access, installation of banners and signage, glazing, building maintenance, building washdowns, painting and the supply of associated products and all charges for time and attendances, hire charges, insurance charges, or any fee or charge associated with the supply of Products and Services by Height Access Technology to the Client.
1.5. “Price” shall mean the cost of the Products and Services as agreed between Height Access Technology and the Client and includes all disbursements eg charges Height Access Technology pay to others on the Client’s behalf subject to clause 4 of this contract.
2. ACCEPTANCE
2.1. Any instructions received by Height Access Technology from the Client 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 Client authorises Height Access Technology to collect, retain and use any information about the Client, for the purpose of assessing the Client’s credit worthiness, enforcing any rights under this contract, or marketing any Products and Services provided by Height Access Technology to any other party.
3.2. The Client authorises Height Access Technology to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3. Where the Client 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. PRICE
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 Height Access Technology 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 Height Access Technology between the date of the contract and delivery of the Products and Services.
5. PAYMENT
5.1. 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 Height Access Technology in the enforcement of any rights contained in this contract shall be paid by the Client, 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.
5.5. A deposit may be required.
6. QUOTATION
6.1. Where a quotation is given by Height Access Technology for Products and Services:
6.1.1. Unless otherwise agreed the quotation shall be valid for thirty (30) 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. Height Access Technology reserve the right to alter the quotation because of circumstances beyond its control.
7. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
7.1. Title in any Products and Services supplied by Height Access Technology passes to the Client only when the Client has made payment in full for all Products and Services provided by Height Access Technology and of all other sums due to Height Access Technology by the Client on any account whatsoever. Until all sums due to Height Access Technology by the Client have been paid in full, Height Access Technology has a security interest in all Products and Services.
7.2. If the Products and Services are attached, fixed, or incorporated into any property of the Client, by way of any manufacturing or assembly process by the Client or any third party, title in the Products and Services shall remain with Height Access Technology until the Client has made payment for all Products and Services, and where those Products and Services are mixed with other property so as to be part of or a constituent of any new Products and Services, title to these new Products and Services shall deemed to be assigned to Height Access Technology as security for the full satisfaction by the Client of the full amount owing between Height Access Technology and Client.
7.3. The Client gives irrevocable authority to Height Access Technology to enter any premises occupied by the Client or on which Products and Services are situated at any reasonable time after default by the Client or before default if Height Access Technology believes a default is likely and to remove and repossess any Products and Services and any other property to which Products and Services are attached or in which Products and Services are incorporated. Height Access Technology shall not be liable for any costs, damages, expenses or losses incurred by the Client 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. Height Access Technology may either resell any repossessed Products and Services and credit the Client’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 Services and credit the Client’s account with the invoice value thereof less such sum as Height Access Technology reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
7.4. Where Products and Services are retained by Height Access Technology pursuant to clause 7.3 the Client 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.
7.5. The following shall constitute defaults by the Client:
7.5.1. Non payment of any sum by the due date.
7.5.2. The Client intimates that it will not pay any sum by the due date.
7.5.3. Any Products and Services are seized by any other creditor of the Client or any other creditor intimates that it intends to seize Products and Services.
7.5.4. Any Products and Services in the possession of the Client are materially damaged while any sum due from the Client to Height Access Technology remains unpaid.
7.5.5. The Client is bankrupted or put into liquidation or a receiver is appointed to any of the Client’s assets or a landlord distains against any of the Client’s assets.
7.5.6. A Court judgment is entered against the Client and remains unsatisfied for seven (7) days.
7.5.7. Any material adverse change in the financial position of the Client.
7.6. If the Credit Repossession Act applies to any transaction between the Client and Height Access Technology, the Client has the rights provided in that Act despite anything contained in these terms and conditions of trade.
8. LIABILITY
8.1. The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Height Access Technology which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Height Access Technology, Height Access Technology’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
8.2. Except as otherwise provided by clause 8.1 Height Access Technology shall not be liable for:
8.2.1. Any loss or damage of any kind whatsoever, arising from the supply of Products and Services by Height Access Technology to the [Client, including consequential loss whether suffered or incurred by the Client 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 Height Access Technology to the Client; and
8.2.2. The Client shall indemnify Height Access Technology 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 Height Access Technology or otherwise, brought by any person in connection with any matter, act, omission, or error by Height Access Technology its agents or employees in connection with the Products and Services.
8.2.3. If contrary to the disclaimer of liability contained in these terms and conditions of trade Height Access Technology is deemed liable to the Client, following and arising from the supply of Products and Services by Height Access Technology to the Client, then such liability is limited in its aggregate to $500.
9. CONSUMER GUARANTEES ACT
9.1. The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Client acquires Products and Services from Height Access Technology for the purposes of a business in terms of section 2 and 43 of that Act.
10. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
10.1. If the Client is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Height Access Technology agreeing to supply Products and Services and grant credit to the Client at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Height Access Technology the payment of any and all monies now or hereafter owed by the Client to Height Access Technology and indemnify Height Access Technology against non-payment by the Client. Any personal liability of a signatory hereto shall not exclude the Client in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Client shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
11. MISCELLANEOUS
11.1. Height Access Technology shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
11.2. Failure by Height Access Technology 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 Height Access Technology has under this contract.
11.3. 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.
11.4. Where applicable the Construction Contracts Act 2002 applies.
11.5. If the Customer defaults in payment then the Customer agrees that where the Products and Services relate to Customer’s land, then the amount of such default gives rise to a legal or equitable estate or interest in the Customer’s land which entitles Height Access Technology to enter a caveat against the Customer’s land pursuant to the Land Transfer Act 1952 and its amendments or any legislation in substitution thereof.