FDT SOLUTIONS WEBSITE TERMS AND CONDITIONS
- Interpretation and Definitions:
- In this Agreement, unless the contest shows otherwise:
- Proprietor is the manufacturer of the Goods and “Manufacturer” and “Proprietor” may be used interchangeably.
- Supplier is the entity as described in para. XIII and shall have its chosen domicilium citandi et executandi at the place so indicated in para. XIII.
- Installer is the individual/entity as described in para. XII and shall have its chosen domicilium citandi et executandi at the place so indicated in para. XII.
- Carrier means the entity contracted in order to fulfill the transport of the Goods, whether by air, sea or road;
- Commencement date shall be the date of signature;
- Confidential Information means, without limitation:
- all secret knowledge;
- information and specification;
- manufacturing techniques;
- instruction and training manuals;
- circuit diagrams;
- electronic artwork;
- information about materials;
- marketing and business information generally; and
- other materials of whatever description and nature in which the Proprietor and/or Supplier has an interest in being kept confidential;
- In this Agreement, unless the contest shows otherwise:
1.1.7 Copyright means the right to reproduce any artistic works, computer-generated works, computer programs, broadcasts, websites, published recordings, published editions, literary work, programme-carrying signal owned by the proprietor of any Goods supplied by the Supplier;
1.1.8 Design means the visual appearance of a product and/or any design applied to any article, whether created by a choice of a particular shape or by surface ornamentation, or by a combination of shape and ornamentation and/or for the pattern or the shape or the configuration thereof, or any two or more of those purposes, and by whatever means it is applied, having features which appeal to and are judged solely by the eye, irrespective of the aesthetic quality thereof and/or having features which are necessitated by the function which the article to which the design is applied, is to perform, and includes an integrated circuit topography, a mask work and a series of mask works.
1.1.9 Goods means all the products and services supplied and/or sold by the Supplier, including but not limited to: the Goods, consumables, equipment, spares and/or machinery, all of which indicated on any of the Supplier’s forms, price lists, quotations, delivery notes, order and invoices;
1.1.10 Licensed Territory means the whole of the Republic of South Africa and Africa;
1.1.11 Know-How means all confidential information relating to the Goods and its exploitation as well as all other confidential information generally relating to the manufacture, use and sale of the Goods, including but not limited to:
184.108.40.206 Technical information;
220.127.116.11 Manufacturing techniques;
18.104.22.168 Information concerning materials and marketing; and
22.214.171.124 Business information generally,
1.1.12 The following:
126.96.36.199 Trade Marks; and
188.8.131.52 All other rights, have the equivalent or similar effect which may exist anywhere in the world, all the rights relating to the goods and services supplied by the Supplier and includes all future additions and Improvements to the Intellectual Property and Patents
1.1.13 Improvements means:
184.108.40.206 Any change, development, improvement or modification created after the Commencement Date to:
220.127.116.11.1 Any aspect of the Intellectual Property;
18.104.22.168.2. The Goods; or
1.1. 13.1.3 Any method of manufacture of the Goods;
22.214.171.124 Use or application of the Goods including any:
126.96.36.199.2 Improvement; or
188.8.131.52.3 Modification; which makes the Goods more efficient or adaptable or enables the Goods to be manufactured more cheaply or efficiently or to a higher standard
1.1.14 Net Sales Price means the amount billed or invoiced by the Supplier for supply of the Goods to an Installer at arm’s length, less the following items to the extent they are indicated as separate items on the relevant invoice:
184.108.40.206 Bona fide packing, transport and insurance costs; and
220.127.116.11 Reasonable trade discounts and reimbursements (including Goods returned) actually granted or made to the Installer for each invoice.
1.1.15 Patents means the registered patents and patent applications of all the Goods supplied by the Supplier, regardless of the ownership thereof.
1.1.16 Prime is the rate of interest per annum at which the Supplier’s bankers will lend to the Supplier on overdraft. This rate of interest must be proven by a Certificate issued by any branch manager of the Supplier and whose appointment will not be necessary to prove.
1.1.17 Taxes includes al:
18.104.22.168 Regional Services; and
22.214.171.124 Other taxes of whatever nature (other than taxes generally asserted on the net income of the Supplier in the Republic of South Africa),
As well as all:
126.96.36.199 Charges or fees.
1.1.18 Technical Expertise means the teaching of the technology necessary to understand the Goods, Designs and Patents their uses and applications.
1.1.19 Trade Marks means the registered and common law trade marks associated with the Goods supplied by the Supplier, regardless of ownership thereof.
1.1.20 Words in the singular include the plural and vice versa;
1.1.21 Words importing any one gender include each of the other two genders;
1.1.22 A reference to a natural person includes a juristic person
1.2 The headings of the clauses are intended for convenience only and must not affect the interpretation of this Agreement.II.
2.1 All agreements for the supply of Goods by the Supplier to the Installer shall incorporate and be governed by these terms and conditions, as may be amended from time to time by the Supplier.
2.2 All Goods are sold in accordance with these terms and conditions.
2.2 This Agreement sets out the relationship, duties and obligations of the Supplier and Installers of the Goods and all parties are bound to its terms from the Commencement Date.
III. Orders, payment and delivery:
3.1 The Installer shall be liable to make all orders for Goods in writing to the Supplier’s nominated email address, being, email@example.com, alternatively, on the Supplier’s online store, alternatively, directly to a sales representative of the Supplier.
3.2 The Supplier shall not be liable to fulfil any order for Goods that have not been made strictly in compliance with this agreement and shall not be liable for any loss or damage suffered by the Installer as a result of same.
3.3 The Installer warrants the accuracy of all descriptions, values and quantities of Goods ordered in every respect and the Installer shall not hold the Supplier liable for any loss or damages suffered by it due to inaccuracy of any or all descriptions, values and quantities of Goods ordered and indemnifies the Suppler against any and all loss suffered by third parties due to inaccuracy.
3.4 Upon an order for Goods being received by the Supplier, the Supplier shall as soon as reasonably possible prepare a quotation for the Installer, which quotation shall be valid for a period of 7 weekdays.
3.5 The Installer is obligated to pay the full quotation amount in cash into the Supplier’s nominated bank account before any order for Goods shall be processed by the Supplier. The Supplier shall render interim statements to the Installer and shall upon receipt of final payments of all amounts payable to it in terms of this agreement deliver a formal tax invoice.
3.6 Quotations are given having regard to the existing scale of wages, shipping rates in force and exchange rate on the date at which the quotation is given. Quotations exclude any levies, duties, taxes, import, fines or outlays of whatever nature levied by the authorities at any port or place in connection with the Goods and the Installer must reimburse the Supplier for any such amount disbursed or losses sustained in connection therewith.
3.7 All quotations are subject to amendment until (specifically taking into consideration fluctuation and variation in the applicable exchange rate), inter alia, such time as off-loading has actually commenced. The Supplier shall provide the Installer with updated and amended quotations as and when they become due and the Installer warrants and undertake to pay any such updated and amended quotations immediately upon presentation thereof.
3.8 In the event that the carrier being obliged to deviate from the route selected by it, or to carry the goods over another route, for any reason whatsoever, including but not limited to adverse weather conditions, danger, vis major, or on the instructions of any competent authority and the carrier increased the costs of consignment, such increase shall be for the Installer and the Installer indemnifies the Supplier for any amount so disbursed or losses sustained in connected therewith.
3.9 All reimbursements as specified in para. 3.6 supra shall be immediately payable by the Installer before release of the Goods from any port or place in connection therewith and the Installer indemnifies the Supplier for any disbursements or losses sustained in connection with any Storage Fees incurred due to late or delayed payment thereof.
3.10 Neither the Supplier or any of its servants or agents will be liable for any loss or damage caused to the Goods or to the Installer, however caused, arising out of this agreement.
3.11 All Goods shall be consigned Ex Works (EXW), however, the Supplier shall make all necessary arrangements on the Installer’s behalf, this does not, however, limit the Installer’s liability. Should the Installer prefer a different mode of import same must be communicated to the Supplier in writing and the Installer warrants that it has understood the method of import so chosen and shall be liable for all disbursements, costs and expenses associated therewith.
3.12 Any estimation given as to the date of final delivery shall be an estimate only, which may be subject to change, however, every effort shall be made to deliver the Goods as per the relevant order, and the Supplier shall not be bound thereby and does not guarantee delivery on any specific date. The Supplier, its employees and agents, shall not be liable for damages to the Installer for failure to deliver the Goods timeously and the Installer shall hold the Supplier, its agents and employees harmless for any damages or losses suffered by the Installer or any third party due to late or delayed delivery even in cases where no negligence of whatever nature is present or negligence/gross negligence is present or for any reason beyond the Supplier’s reasonable control, including but not limited to, inability to secure transport, labour, power, materials, equipment or supplies or by reason of an act of God, war, civil disturbance, riot, state of emergency or disaster strike, lockout, or other labour dispute, fire, drought, flood or legislation and the Installer shall not be entitled to cancel any order for Goods by reason of such delay.
3.13 As security for all monies due to it, whether past, present or future, in terms of this agreement, the Supplier shall have a lien of all the Goods, documents, import permits, bills of lading and all repayments, refunds, claims or recoveries due to the Installer and in its possession or under its control. In addition, the Supplier will be entitled to hold all Goods as security for any other monies which may be owing to it by the Installer from any cause whatsoever.
3.14 Even if credit may have originally been granted by the Supplier to the Installer, the Supplier may at any time and at its sole discretion retain possession of any Goods pending the discharge of all the Installer’s indebtedness to the Supplier, whether or not such indebtedness is related to the handling of the Goods in question.
3.15 In the event of the Supplier retaining possession of the Goods in terms of paras. 3.13 and/or 3.14 supra, the Supplier shall be entitled to store or warehouse the Goods at such place at it deems fit and for the Installers account.
3.16. If any monies due to the Supplier are not paid within 30 calendar days after they become due, the Supplier shall be entitled, without further notice, to sell the Goods, either in whole or in part, and to use such proceeds to supplement and cover its disbursements and costs incurred or money owed as a result thereof and shall repay such excess as shall be available to the Installer as soon as is reasonably possible after the Installer has provided the Supplier with its nominated bank account.
3.17 It is specifically recorded herein that all Goods are checked and tested by the Manufacturer prior to being transported to the Supplier. Upon receipt of the Goods the Supplier shall also conduct its own tests on the Goods to ensure that they are of the correct standard. Should any of these tests return any fault and/or there is damage to the Goods, the Installer understands and acknowledges that the Supplier will be required to return same to the Manufacturer and that the delivery time to the Installer shall be further delayed.
3.18 If the Supplier itself transports the Goods to the Installer, delivery and passing of risk in the Goods shall be deemed to have taken place when the Goods are off-loaded at the Installer’s premises. he signature of any employee of the Installer on a delivery note or invoice of the Supplier shall be prima facie proof of the proper delivery of the Goods.
3.19 If the Installer collects the Goods at the Supplier’s premises, the risk shall pass to the Installer on collection of the Goods by the Installer.
3.20 Should the Supplier, at the Installer’s behest, agree to engage a carrier to transport goods to the Installer, such carrier shall be the Installer’s agent and the Supplier shall engage with the carrier on such terms and conditions as it deems fit. The Installer indemnifies the Supplier, its employees and agents, against all demand and claims that may be made against it by the carrier so engaged and all liability that the Supplier may incur to the carrier arising out of the transportation of Goods. Delivery of the Goods and risk therein shall be made and pass to the Installer on loading the Goods onto suck carrier transport.
3.21 Delivery of Goods to any delivery address stipulated by the Installer, shall constitute proper delivery of the Goods, despite the fact that such address may not be the registered address or principal place of business or premises of the Installer.
3.22 In the event that the Supplier makes delivery to the Installer in instalments each instalment shall be deemed to be subject of a separate contract and non-delivery or delay in delivery of any instalment shall not affect the contracts in respect of the other instalments or entitle to Installer to cancel the order or any of the other orders relating to such instalments.
3.23 Goods shall be deemed to have been received in good order and condition unless the Installer has specified to the Supplier in writing, within 48 hours of receipt of the Goods, of any errors, defects or shortages. Should the Installer fail to notify the Supplier of any defect as contained in this para. 3.23, any claim, which the Installer may have shall be waived.
3.24 Ownership in all Goods sold and delivered shall only pass from the Supplier to the Installer once the full purchase price in respect of the Goods (together with any interest and ancillary charges thereon) has been paid by the Installer.
3.25 It shall not be necessary for the Supplier to prove either to the Installer or the Installer’s liquidator or trustee, which Goods in the possession of the Installer have actually been paid for and which have not been paid for. The Supplier shall be entitled to identify Goods sold to the Installer merely by way of packaging and other distinguishing marks and the Supplier shall not be obliged to identify its Goods by way of serial number or any other form of identification.
3.26 Goods sold by the Supplier to the Installer are not returnable save at the discretion and option of the Supplier, should the Supplier choose to accept the return of any Goods, the following shall apply:
3.26.1 Any resin supplied is not refundable or exchangeable;
3.26.2 All Goods returned must be complete, clean, sellable, undamaged, in their original packaging and (where applicable) have at least 9 months remaining on its shelf live;
3.26.3 The Supplier must be notified by the Installer of the relevant invoice before any claim for the return of the Goods will be considered;
3.26.4 All Goods are to be returned at the Installer’s expense and the risk in the Goods remains with the Installer until the Supplier receives the Goods.
IV. Duties, Obligations and Limitations of the Installer:
4.1 The Installer undertakes to keep all Confidential Information and Know-How which the Supplier has given access to, confidential, whether the Installer got access to it before or after the Commencement Date of this agreement.
4.2 The Installer will not reveal or make known or allow revealing or making known of the Confidential Information and Know-How in any manner whatsoever.
4.3 The Installer must take all steps which may be reasonably necessary to prevent the Confidential Information and Know-How from falling into the hands of unauthorised third parties.
4.4 The Installer may not use any Confidential Information and/or Know-How in the development, manufacture, marketing or sale of any Goods without the prior written consent of the Supplier and Proprietor and the Installer absolutely may not provide any Confidential Information and/or Know-How to any third party to develop, manufacture, market or sell Goods (regardless how the Installer came across such Confidential Information and/or Know-How, including but not limited to reverse engineering). Should the Installer act in breach of this para. 4.4 the Installer shall, without subtracting from any other remedies which the Supplier may have available to it in law, immediately hand over all Goods sold by the Supplier and all goods manufactured and/or developed, the proceeds of any sales flowing from such breach and all technical data (regardless whether such Goods supplied, goods manufactured and/or developed or proceeds of sales are held by the Installer or third party) to the Supplier.
4.5 The Installer must not use or disclose or attempt to use or disclose the Confidential Information and Know-How for any purpose other than what it has been expressly authorised to by the Supplier and Proprietor.
4.6 All documentation given to the Installer by the Supplier in order to make full and effective use of the Goods shall remain the sole property of the Supplier. The documentation must be returned to the Supplier when it requests it. The Installer may not make any copies of the documentation without the prior written consent of the Supplier.
4.7 Any Confidential Information and Know-How which comes into the possession of the Installer or one or more of its agents or employees, or which is generated by the Supplier or Proprietor or one or more of their agents or employees and whether on, before or after the Commencement Date will be regarded as forming part of the Confidential Information and Know-How, will be regarded as the property of the Supplier and/or Proprietor, may not be copied, reproduced, published or circulated by the Installer, and must be surrendered to the Supplier on demand.
4.8 The Installer must use all Goods supplied by the Supplier as directed by either the Supplier or the Proprietor and must use all Goods supplied by the Supplier in conjunction with products authorised by the Supplier only. Any failure by the Installer to do as aforesaid in this paragraph 4.8, regardless of the presence or absence of negligence or gross negligence on the part of either the Installer or Supplier or any of their agents or employees, shall immediately void any guarantee given by the Supplier and the Supplier shall not be liable for any loss or damage suffered by the Installer, its agents or employees and the Installer shall hold the Supplier, its agents and employees harmless and indemnifies them from any claim for loss or damage suffered by any third party.
4.9 Should any of the Goods supplied by the Supplier produce results below that which is reasonably required by it as a result of any fault in the manufacturing of same, the onus shall rest solely on the Installer to prove that any such failure is as a result of a fault in the manufacturing of the Goods. In order to prove any such fault, the Installer shall, at its own expense, enlist the service of independent third parties, which third parties must have the necessary and required machinery, testing equipment, qualifications and expertise and must seek the assistance of the Supplier. Should the failure be as a result of a fault in the manufacturing process the Supplier shall reimburse the Installer the costs of proving same.
4.10 Once the Installer has been placed in possession of the Goods supplied by the Supplier the Installer shall store the Goods in the manner prescribed by the Proprietor and/or the Supplier. Any failure by the Installer to do as aforesaid in this paragraph 4.10, regardless of the presence or absence of negligence or gross negligence on the part of either the Installer or Supplier or any of their agents or employees, shall immediately void any guarantee given by the Supplier and the Supplier shall not be liable for any loss or damage suffered by the Installer, its agents or employees and the Installer shall hold the Supplier, its agents and employees harmless and indemnifies them from any claim for loss or damage suffered by any third party.
4.11 The Installer, its agents and employees shall be prohibited from advertising as suppliers or manufactures of the Goods and may only advertise themselves as installers of the Goods.
4.12 Should the Installer request any assistance from the Supplier in order to rectify any error in the installation process of the Goods, whether such assistance shall be in person, via electronic or telephonic conversation, the onus shall rest on the Installer to precisely recount the exact steps taken by it during the installation, storage and transport process. Any failure by the Installer to do as aforesaid in this paragraph 4.12, regardless of the presence or absence of negligence or gross negligence on the part of either the Installer or Supplier or any of their agents or employees, shall immediately void any guarantee given by the Supplier and the Supplier, its agents or employees shall not be liable for any loss or damage suffered by the Installer, its agents or employees and the Installer shall hold the Supplier, its agents and employees harmless and indemnifies them from any claim for loss or damage suffered by any third party of whatsoever nature and whether sounding in money or performance or otherwise.
4.13 In the event that the Installer requires assistance with any installation onsite and requests same from the Supplier, the Installer acknowledges and agrees to make payment of all incidental costs related thereto, in advance, including but not limited to, hourly call out rate, transport costs, subsistence allowance and accommodation costs. In the event that the Installer secures the assistance of an employee or agent of the Supplier on any specific site, the Installer cannot hold the Supplier, its employee or agent, liable for any damage which may arise as a result of the employee or agent’s conduct or assistance.
4.14 The Supplier shall, at a fee determined by the Supplier, provide the Installer, its employees and agents with all reasonably necessary training and education on the use of all goods supplied. Should the Installer choose not to receive said training and education the Supplier, its employees and agents shall, notwithstanding anything contained elsewhere in this agreement, not be liable for any loss or damage suffered by the Installer as a result of the incorrect use of the goods supplied and the Installer shall hold the Supplier, its employees and agents harmless and indemnifies them against any claims by any third parties of whatsoever nature and whether sounding in money or performance or otherwise arising out of the Installer its employees or agents incorrect use of the goods supplied.
4.15 Should the Installer require any repairs to be done on any of the Goods supplied the Installer shall provide the Supplier with a detailed list containing all Goods which require repairs and setting out the faults which require repair. The Supplier shall thereafter as soon as reasonably possible, and where possible to affect the repairs locally, provide the Installer with a quotation for the repairs, 70% of which shall be payable before repairs commence with the remaining 30% payable immediately upon completion of the repairs and before return of the goods to the Installer. The Supplier, its employees and agents shall not be liable for and loss or damage suffered by the Installer, its employees or agents as a result of any repairs needed to be done or a delay in repairs or the reason and cause of the repairs and the Installer holds the Supplier, its employees and agents harmless and indemnifies them against any claims by any third parties of whatsoever nature and whether sounding in money or performance or otherwise arising out of any repairs to be done or any delay in repairs or the reason and cause of the repairs.
4.16 The Installer acknowledges and accepts the following, and in addition to para. 4.15 supra:
4.16.1 The Supplier cannot attend to all major repairs at its premises in South Africa, and where major repairs are required the Installer must notify the Supplier of same in order for the Supplier to make a determination whether the Goods requiring repair must be returned to the Manufacturer;
4.16.2 The Supplier shall attempt to assist the Installer as far as reasonably possible to affect requires in South Africa, however, this may be limited as the Supplier does not necessarily have access to the required software and programming equipment, however, the Supplier may at any time prior to the issuing of a quotation or determination where repairs are to be affected attend to an inspection of the Goods to be repaired;
4.16.3 The Supplier cannot guarantee and provide a fixed time period with which any repairs can or will be conducted and finalised;
4.16.4 Should the Supplier determine that any repairs must be undertaken by the Manufacturer and quotation shall be provided to the Installer and once the full amount has been paid the Supplier shall instruct the Manufacturer to proceed with the repairs;
4.16.5 Should there be any ancillary or associated costs over and above the amount initially quoted the Installer shall pay such amount prior to collection of the repaired goods, regardless whether the repairs were done by the Supplier or Manufacturer;
4.16.6 The Installer shall pay all costs in relation to the delivery and transport of the Goods which require repair to and from the Supplier, alternatively, the Manufacturer; and
4.16.7 The Installer may not attempt to repair or alter the Goods in any way and same shall allow the Supplier to terminate this agreement.
4.17 The Supplier is entitled, regardless whether this agreement has come to an end or not, to at any point in time and on reasonable advanced notice to the Installer, to conduct an inspection of the Installer’s premises and/or sites where the Goods are being stored and/or installed in order to comply with its rights and obligations.
4.18 In the event that, after such inspection as provided for in para. 4.12 supra, it is found that the Installer is not, inter alia, utilising the correct installation procedure, and/or not conducting the installation to standards set by the Manufacturer or Supplier and/or the Installer is utilising incorrect equipment, the Supplier may at its sole discretion, terminate this agreement, alternatively, require that the Installer obtain training for its staff (at the Installer’s expense) prior to any further installations conducted by the Installer.
4.19 There shall be no obligation on the Supplier, its employees or agents to ensure that there is at all times sufficient stock of goods on hand to satisfy all of the Installer’s needs. The Supplier, its employees and agents shall not be liable for and loss or damage suffered by the Installer, its employees or agents as a result of any shortage of stock and the Installer holds the Supplier, its employees and agents harmless and indemnifies them against any claims by any third parties of whatsoever nature and whether sounding in money or performance or otherwise arising out of any shortage of stock.
4.20 The Installer acknowledges and accepts that the majority of the Goods are imported from the European Union and as such delivery times cannot be guaranteed. In this regard, waiting periods for stock ordered via air freight is approximately 2 weeks and via sea freight is approximately 6 weeks and the Installer is encouraged to ensure that it holds sufficient stock so as to unsure that the Goods are on hand when the Installer requires same.
4.21 In the event that the Installer fails to take delivery of any or all of the Goods ordered, or in any way delays the delivery of any or all of the Goods ordered, then the risk in the Goods shall pass to the Installer upon them being tendered for delivery by the Supplier and the Installer shall, without prejudice to such other rights which the Supplier may have in law, be liable to pay the Supplier the reasonable costs of storing, insuring and handling the Goods, until delivery takes place.
4.22 The Installer shall fully insure the Goods purchased from the Supplier against loss or damage for an amount not less than the amount owing by the Installer to the Supplier in respect of such Goods, until such time as the Installer has paid the full purchase price for the Goods. Pending payment to the Supplier for Goods purchased, all benefits in terms of the insurance policy relating to such goods are ceded to the Supplier.
4.23 In the event of any failed installation(s) by the Installer:
4.23.1 The Installer warrants that it shall attend to any complaints received from any third party timeously;
4.23.2 Where a complaint has been submitted by a third party (whether to the Supplier or Installer) it is the Installer’s responsibility to ensure that all necessary repairs are attended to the satisfaction of the third party;
4.23.3 In the event that the Installer fails to attend to such repairs, the Supplier will attend to same (and may at its sole discretion ulitise an alternative Certified Installer) at the Installer’s expense;
4.23.4 In the event that the Installer persists in causing damage to the third party’s site and/or brings the Supplier’s name into disrepute and/or causes damages to the good will of the Goods, the Supplier may, without subtracting from any other remedies it may have available in law, summarily and without notice terminate this agreement and cease supplying the Installer;
4.23.5 In the event that the Installer continuously installs Goods incorrectly, the Installer understands and accepts that the Supplier may halt supply of the Goods (whether paid for or not) indefinitely until such time as the Installer has ensured that its employees and agents have been sent for the appropriate training and is training up to a standard which is acceptable to the Supplier.
4.24 Should this agreement be terminated for whatever reason, the Installer shall not directly or indirectly attempt to reconstruct any Know-How or Confidential Information of the Goods, the Supplier or the Manufacturer through any means whatsoever.
4.25 The Installer understands and agrees that any information, whether marketing or otherwise, relating to the Goods or services provided by the Installer, Supplier or Manufacturer posted by the Installer on any electronic or print platform shall be immediately removed by the Installer at the Supplier’s or Manufacturer’s request without the need for the Supplier or Manufacturer to provide reasons for such request.
4.26 Should there be any failed installations by the Installer at a third party:
4.26.1 The Installer must ensure that it attends to any third party’s complaints timeously;
4.26.2 The Installer must ensure that all necessary repairs are attended to in order to satisfy the third party;
4.26.3 Should the Installer fail to attend to such repairs the Supplier shall attend to same at the Installer’s expense;
4.26.4 Where the Installer continues to cause damage to the third party and/or brings the Supplier’s and/or Manufacturer’s and/or the Good’s name into disrepute and/or continues to install the Goods incorrectly, the Supplier shall cease to supply the Installer with any Goods and shall be able to claim damages from the Installer and may request that the Installer’s employees and agents undergo training by the Supplier at the Installer’s expense.
V. Warranties and Representations:
5.1 There are no understandings or agreement between the Supplier and Installer, nor have any warranties been given or representations made by or on behalf of the Supplier except as contained in this agreement.
5.2 The Supplier gives no warranty and makes no representation, whether express or implied, in whatever format, that the Goods sold by the Supplier are suitable for the purposes for which they have been ordered.
5.3 The correctness and validity of any advice or opinion given by the Supplier’s employees or agents is not warranted and any such advice or opinion is given to the Installer only and the Supplier accepts no responsibility for any damages that the Installer or any third party may incur as a result of them relying on same.
5.4 Each Party represents and warrant that it/he/her has full competency and authority to enter into this agreement and to do all things necessary for the performance of this agreement and that all information provided herein are accurate and complete.
5.5 The Installer consents that the Supplier may at any time contact and request information from any person, credit bureau or business to obtain any information relevant to the Supplier’s credit assessment of the Installer and, furthermore, consents that the Supplier may provide at any time information regarding the Installer’s dealings with the Supplier to any credit bureau or company seeking a trade reference regarding the Installer’s dealings with the Supplier.
VI. Ius Retractus:
6.1 The Installer may within 48 hours of an order being placed with the Supplier and for any reason on written notice to the Supplier’s nominated email address, being firstname.lastname@example.org, alternatively, by email to a the sales representative responsible for the order, cancel any order.
6.2 Notwithstanding any other provision contained herein, the Supplier shall have the right, despite acceptance of the order, to cancel the transaction at any time prior to delivery of the goods, in which case the Supplier’s liability shall be limited to a refund of any amounts paid by the Installer in respect of the goods.
6.3 Upon the cancellation of any order the Supplier shall return any monies paid to it by the Installer, less any expenses or disbursements already incurred by the Supplier on the Installer’s behalf, which amounts shall be properly accounted to the Installer.
7.1 Notwithstanding anything contained elsewhere in this agreement the Installer, its employees and agents agree to hold harmless and indemnify the Supplier its employees and agents against any loss or damage which the Supplier, its employees and agents might suffer as a result of the Installer’s breach or non-compliance with terms of this agreement.
7.2 The period(s) of indemnity(ies) contained in para. 7.1 supra and elsewhere in this agreement shall commence on the Date of Commencement and shall continue in perpetuity.
8.1 Should either Party fail to adhere or comply with any term of this Agreement, the innocent Party shall deliver a written notice by email to the offending Party calling upon the offending Party to rectify the breach within 7 (seven) calendar days of receipt thereof, by failure of such rectification the innocent Party shall be entitled to terminate this Agreement or to force compliance and performance without prejudice to any of its rights and to utilise any remedy available to it under law.
8.2 Should this Agreement be terminated for whatever reason the clauses reasonably necessary for the innocent Party to exercise any right it may have under law shall survive any such termination and shall not be deemed to be waived, specifically but not limited to any clauses relating to domicillia, delivery of notices, processes and pleadings, jurisdiction, interest, costs and remuneration and the whole of clauses III. and IV..
8.3 Should the Supplier have to approach any competent forum for the adjudication of any of its rights against the Installer, the Installer shall be liable to the Supplier for costs on a scale as between attorney-and-client and shall furthermore be liable for any collection fees on any amount due and owing to the Supplier and any Notices, Pleadings, Documents (whether legal or otherwise) initiating proceedings or interlocutory in nature may be served on the Installer’s chosen domicilium citandi et executandi.
8.4 In the event of a breach of these terms and conditions by the Installer, or if the Installer is sequestrated or placed under liquidation or business rescue or judicial management or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy a judgment granted against the Installer within 7 (seven) days of the date of judgment or the structure of the ownership of the Installer changes, the Supplier shall be entitled to take possession of the Goods without prejudice to any further rights vested in the Supplier, and is hereby irrevocably authorised to enter upon the Installer’s premises to take possession of such Goods without Court orderThe Installer shall have no claim against the Supplier, its employees or agents for damages suffered, whether due to loss of profits or otherwise, occasioned by the removal of goods from the Installer’s premises as aforesaid notwithstanding that such removal was effected without a Court order.
9.1 No waiver of any of the terms or conditions of this agreement will be binding unless expressed in writing and signed by the both parties and any waiver will only be effective only in the specific instance and for the purpose given.
9.2 No failure or delay on the part of the Supplier in exercising any right, power or privilege will be regarded as a waiver and no single or partial exercise of this by the Supplier will prevent other or further exercise of it or the exercise of any other right, power or privilege.
10.1 Each provision of this agreement will be treated as a separate and independent clause, and the unenforceability of any one provision will in no way impair the enforceability of any other provision. If any provision is held to be unenforceable, such provision will be construed by the appropriate judicial body by limiting or reducing it to the minimum extent necessary to make it legally enforceable.
XI. Whole Agreement:
11.1 This Agreement contains the entire undertaking of the Parties and there are no promises, terms, conditions or obligations, whether oral or written, express or implied, other than those contained in this agreement, unless provision has been made therefore in this Agreement.
11.2 Should there be any dispute as to the interpretation of this Agreement or any term thereof, no extrinsic evidence shall be adduced in the realisation of same and the Parties shall not rely on the contra proferentem rule.
11.3 Any variation of the terms hereof, unless provided for elsewhere in this Agreement in relation to a specific term, shall be reduced to writing and signed by the Supplier before it shall be of any force and effect.
11.4 The Supplier may at its sole discretion vary and amend these terms and conditions and such variations or amendments shall be binding on the Installer as soon as it receives a written and singed notice thereof and any subsequent dealings shall be in the amended terms and conditions.
11.5 The Installer shall notify the Supplier within 7 days of any change in name or address and such notification shall be forwarded to email@example.com