STANDARD TERMS AND CONDITIONS OF CONTRACT
(MANUFACTURER TO CUSTOMER OR DEALER)
These are Hot Art (the â€œSellerâ€) Standard Terms and Conditions, which will apply to every contract whereby you as the Customer (the â€œCustomerâ€) order and purchase the items of the Products (as set out in the Order) from the Seller.
2. The Contract
2.1. The Terms of the Contract between the Seller and the Customer for the sale and supply of items of the Products Ordered are contained collectively in: the duly completed Order, these Standard Terms and Conditions, Acceptance, and the relevant parts of the Sellerâ€™s then Current Price List.
2.2. The Contract date is the date the Seller Communicates acceptance to the Customer. An Order once placed where Acceptance has been communicated may only be cancelled by the Customer if the Seller agrees in writing to its cancellation. Cancellation may be conditional on the Customer paying the costs and expenses incurred by the Seller up to the date of cancellation. Where the Products have to be made or adapted to the Customerâ€™s particular specifications or requirements then the Customer must also pay for all work in progress up to the date of cancellation.
3. Defined Terms
In these Standard Terms and Conditions and any related documents, unless the context otherwise requires the following words and phrases mean:
â€œAcceptanceâ€ means the occurrence of any one of the following:
(a) the signed Acceptance by the Seller of the Order; or
(b) the Delivery of the Products in which event the Acceptance will be deemed Communicated without any further steps being required.
â€œCommunicatesâ€ means all tenses of the verb and any act of communication and includes written communications, electronic communications and facsimile communications but does not include oral communications unless confirmed in writing electronically or by facsimile.
â€œContractâ€ means this contract for the sale and purchase of the Ordered Products.
â€œCurrent Price Listâ€ means the price list published by the Seller from time to time as the current prices of the Products to its Customers, exclusive of GST.
â€œDeliveryâ€ means delivery at Customer premises or such other place as the Seller and the Customer may in writing agree as the place of delivery for the Products Ordered.
â€œIntellectual Propertyâ€ means all copyright in all designs, plans and drawings of the Products, all Designs whether registered or unregistered, all trademarks and logos whether registered or unregistered, all patents granted and patents pending and all know-how and information pertaining to the manufacture of the Products.
â€œOrderâ€ means an Order placed by the Customer for the purchase of an item or items of the Products and Communicated to the Seller.
â€œOrder Formâ€ means the Sellerâ€™s Order Form from time to time.
â€œPartiesâ€ means the Seller and the Customer.
â€œPersonâ€ means any individual, company or entity not being a Party and not being an employee of a Party.
â€œPriceâ€ means the purchase price of the Products exclusive of GST determined by reference to the Sellerâ€™s Current Price List and as set out in the Order.
â€œProducts Orderedâ€ means the Products ordered by the Customer and indemnified on the Order as signed by the Customer.
â€œSpecificationsâ€ means any Sellerâ€™s specifications applicable to an item of the Products â€œTax Invoiceâ€ means a tax invoice that complies with the GST Act.
The Seller agrees to sell and the Customer agrees to buy the Products ordered by the Customer for the Price. The Price must be paid at such other time as the Seller and the Customer may in writing agree.
5. Delivery Invoices
The Seller will render a Tax Invoice to the Customer on or prior to Delivery.
6. Price and Partial Delivery
Where there is partial Delivery of the Products, then the Seller will be entitled to be paid by the Customer that proportion or percentage of the Price that relates to those Products delivered on that partial Delivery.
7.1. The Seller warrants to the Customer that the Products will be manufactured by the Seller using good and suitable materials and components. The Seller will replace or remedy any faulty part or component of any item of the Products Ordered that the Customer Communicates to the Seller as faulty or requiring replacement within ten (10) days of Delivery;
7.2. The Seller will not be responsible for any damage to the Products which occurs at any time after Delivery unless the Customer can provide reasonable evidence that the damage was a direct result of any fault or defect in the manufacture, materials, packing or delivery.
7.3. The Seller will not be liable to the Customer for any damage or destruction of the Products after delivery.
8. Delivery of the Products
The Seller will Deliver the Products safely and securely packed. The Customer or the Customerâ€™s representative must be present on Delivery to inspect the Products Ordered and sign for acceptance of the Products on Delivery.
Unless otherwise agreed in writing, payment for the Products Ordered must be made according to the terms within the Hot Art Credit Application signed by the Customer. The Seller always reserves the right at any time to require whole or partial payment of the Price by the Customer at any time before delivery. Where the whole or partial payment of the Price is required by the Seller before Delivery, any failure by the Customer to make such payment when required by the Seller entitles the Seller to suspend manufacture of the Products Ordered; and/or after seven (7) daysâ€™ prior written notice to the Customer, terminate this Contract and claim any damages. Damages will include the actual cost of work in progress up to termination plus the Sellerâ€™s loss of gross profit on the Products Ordered.
10. Time of Delivery and Delay
10.1. The Seller will take all reasonable commercial endeavours to ensure that the Products Ordered are Delivered on the agreed date for Delivery set out in the Order..
10.2. Provided the Seller has used all reasonable commercial endeavours to Deliver the Products to the Customer in accordance with the date or dates for Delivery in the Order, the Seller will not be liable to the Customer for any delay in Delivery of the Products or any part thereof.
10.3. The Customer acknowledges that the Seller may be dependent upon various supplies of materials and components from third parties in order to be able to Deliver the Products to the Customer by the agreed date or dates for Delivery. Any delay in the manufacture of the Products Ordered caused by any shortage or unavailability of materials or components may give rise to a delay in Delivery and the Customer acknowledges and agrees that in such circumstances the Seller will not thereby be in breach of its Delivery obligations.
Unless otherwise agreed in writing by the Seller and the Customer, title in the Products Ordered will not pass to the Customer until the Products are fully paid for by the Customer. Where the Products have been Delivered to the Customer prior to having been fully paid for, the Customer will hold the Products until full payment has been made as a bailee at will for the Seller.
12. Ownership of Intellectual Property
12.1. Nothing in the Contract between the Parties gives the Customer any interest or right to the Intellectual Property in the Products Ordered which Intellectual Property the Customer acknowledges is exclusively owned by the Seller.
12.2. All copyright in all manuals, diagrams, drawings, plans and specifications that are provided to the Customer with the Products Ordered remains the sole and exclusive property of the Seller and such items are not to be reproduced without prior written permission of the Seller.
13.1. If the Customer:
13.1.1. enters into a deed of arrangement or commits an act for bankruptcy or compounds with its creditors or becomes insolvent, or has a trustee appointed to any of its assets or has a summons for its winding up filed, goes into liquidation or has a receiver appointed to the whole or any part of its assets or if an Administrator is appointed under Section 231I of the Companies Act 1993; or
13.1.2. is in breach of any of the terms and/or conditions of this Contract then,
the Seller may immediately stop manufacture of any of the Products, stop any of the Products in transit, suspend Delivery and any further performance of this Contract and/or any other agreement with the Customer without prejudice to any of the Sellerâ€™s other rights and remedies and without being in breach of any of the Sellerâ€™s obligations under this Contract.
14. Governing Law
14.1. This Contract shall be governed by and construed and interpreted in accordance with the laws of New Zealand in which the Seller has its principal place of business.
14.2. Any dispute will be subject to the exclusive jurisdiction.
15.1. In the event of any dispute arising between the Seller and the Customer as to any Partyâ€™s rights or obligations under the Contract or as to whether either Party has breached or failed to meet its obligations then both Parties agree to meet together and in good faith seek to resolve the dispute.
15.2. If notwithstanding this clause the dispute remains unresolved either Party may take such actions as it thinks fit to enforce its rights against the other.