DEFINITIONS
“AlphaByte” shall mean Alan T Litchfield and Karol M Wilczynska trading as AlphaByte, or any agents or employees thereof.
“Client” shall mean the Client, any person acting on behalf of and with the authority of the Client, or any person purchasing Services and services from AlphaByte.
“Services” shall mean all services, products, goods and advice provided by AlphaByte to the Client and shall include without limitation all design and consultation services and all charges for time and attendances, hire charges, insurance charges, or any fee or charge associated with the supply of Services by AlphaByte to the Client.
“Price” shall mean the cost of the Services as agreed between AlphaByte and the Client and includes all disbursements, for example, charges AlphaByte may pay to others on the Client’s behalf subject to clause 4 of this contract.
ACCEPTANCE
Any instructions received by AlphaByte from the Client for the supply of Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
COLLECTION AND USE OF INFORMATION
The Client authorises AlphaByte 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 Services provided by AlphaByte to any other party.
The Client authorises AlphaByte to disclose any information obtained to any person for the purposes set out in clause 3.1.
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 2020.
PRICE
Where no price is stated in writing or agreed to orally the Services shall be deemed to be supplied at the current amount as such Services are supplied by AlphaByte at the time of the contract.
The price may be increased by the amount of any reasonable increase in the cost of supply of the Services that is beyond the control of AlphaBytebetween the date of the contract and delivery of the Services.
PAYMENT
Unless any other agreement has been made between AlphaByte and the Client, payment for Services shall be made in full prior to Services being provided. Otherwise, any other agreement notwithstanding, payment shall be made on or before the 20th day of the month following the date of the invoice (“the invoice date”).
Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
Any expenses, disbursements and legal costs incurred by AlphaByte 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.
Receipt of direct credit into a bank account, credit card payment, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
A deposit may be required.
QUOTATION
Where a quotation is given by AlphaByte for Services:
Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
AlphaByte reserves the right to alter the quotation because of circumstances beyond its control.
Where Services are required in addition to or in the execution of the quotation, the Client agrees to pay for the additional cost of such Services.
CLIENT PROPERTY
All articles or material or documentation submitted to AlphaByte or its subcontractors shall at all times remain the property of the Client and remain at the Client’s risk (including during transit and after completion of the work) and AlphaByte shall not be liable for any loss or damage howsoever caused in respect thereof.
RETENTION OF TITLE
Where the Client has not paid for any Services (which includes products and goods) in its possession property in such Services shall remain with AlphaByte and:
The Services shall be held by the Customer as bailee; and
Title in the Services shall remain with AlphaByte until the client has made payment for the Services.
The Client gives irrevocable authority to AlphaByte to enter any premises occupied by the Client, at any reasonable time, to remove any Servicesnot paid for in full by the Client. AlphaByte shall not be liable for costs, damages or expenses or any other 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.
GENERAL LIEN
The Client agrees that AlphaByte may exercise a general lien against any Services or property belonging to the Client that is in the possession of AlphaByte for all sums outstanding under this contract and any other contract to which the Client and AlphaByte are parties.
If the lien is not satisfied within seven (7) days of the due date AlphaByte may, having given notice of the lien at its option either:
Remove such Services and store them in such a place and in such a manner as AlphaByte shall think fit and proper and at the risk and expense of the Client; or
Sell such 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.
DISPUTES
No claim relating to Services will be considered unless made within seven (7) days of delivery.
LIABILITY
The Consumer Guarantees Act 2017, the Fair Trading Act 2023 and other statutes may imply warranties or conditions or impose obligations upon AlphaByte 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 AlphaByte, AlphaByte’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.
Except as otherwise provided by clause 11.1 AlphaByte shall not be liable for:
Any loss or damage of any kind whatsoever, arising from the supply of Services by AlphaByte 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 Services provided by AlphaByte to the Client; and
The Client shall indemnify AlphaByte 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 AlphaByte or otherwise, brought by any person in connection with any matter, act, omission, or error by AlphaByte its agents or employees in connection with the Services.
If, contrary to the disclaimer of liability contained in these terms and conditions of trade, AlphaByte is deemed to be liable to the Client, following and arising from the supply of Services by it to the Client, then it is agreed between AlphaByte and the Client that such liability is limited in its aggregate to $500.00.
COPYRIGHT AND INTELLECTUAL PROPERTY
AlphaByte, owns and has copyright in all work, designs, proofs, software, systems, solutions, drawings, specifications, electronic data and documents produced by AlphaByte in connection with the Services provided pursuant to this contract and the client may use the Services only if paid for in full and for the purpose for which they were intended and supplied by AlphaByte.
The Client warrants and undertakes that any design or instruction given by the Client to AlphaByte shall not be such as will cause an infringement of any copyright, patent, registered design, or trademark in the performance of the contract by AlphaByte. Further the Client agrees to indemnify AlphaByte to the fullest extent against all or any liability, loss, costs and expenses that AlphaByte may directly or indirectly suffer or incur as a result of any breach by the Client of the above warranty and undertaking or the reproduction and/or publication of such material.
CONSUMER GUARANTEES ACT
The guarantees contained in the Consumer Guarantees Act 2017 are excluded where the Client acquires Services from AlphaByte for the purposes of a business in terms of section 2 and 43 of that Act.
PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
If the Client is a company or trust, the director(s) or trustee(s) accepting this contract, in consideration for AlphaByte agreeing to supply Servicesand grant credit to the Client at their request, also accept this contract in their personal capacity and jointly and severally personally undertake as principal debtors to AlphaByte the payment of any and all monies now or hereafter owed by the Client to AlphaByte and indemnify AlphaByteagainst 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.
MISCELLANEOUS
AlphaByte shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
Failure by AlphaByte 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 AlphaByte has under this contract.
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.
