Definitions: In these Conditions, the following words shall have the meanings ascribed to them:
Business Day: a day other than a Saturday, Sunday or public holiday in South Africa.
Contract: the contract between the Supplier and the Client for the Work, which shall comprise of these Conditions, the Quotation, the Proposal, and any other documents incorporated into these Conditions by reference.
Conditions: the terms and conditions as contained in the Supplier’s standard terms and conditions.
Force Majeure Event: as defined in condition 11.
Goods: the goods (or any part of them), listed in the Quotation.
Manufacturer’s Specifications: any description or specification for the Goods included in any catalogues, brochures or other materials published by or on behalf of the manufacturer.
Proposal: the documents signed by the Client confirming his/her satisfaction with the Work scoped (the “Work”), in association with the Quotation, and outlines all the finishes and/or Goods being supplied and installed.
Quotation: the quotation provided by the Supplier to the Client setting out the itemised Goods required for purposes of completing the Work, together with all additional and associated charges.
Supplier: BNC Marketing CC t/a BNC Technology, Registration No. 2008/169545/23, trading at 16 Skeen Boulevard, Bedfordview, 2008.
Work: shall be the installation of the custom designed home cinema, as more fully outlined in the Proposal as read with Quotation.
In the event that any of the terms and conditions contained in the Proposal conflicts with those contained in these Conditions, the Proposal shall prevail.
In the event that any of the terms and conditions contained in the Quotation conflict with those contained in these Conditions, the conditions contained in the Quotation shall prevail.
The Client has appointed the Supplier to render the Work in accordance with the Contract.
These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
The Contract shall come into being once the Client accepts the Proposal, as read with the Quotation.
The Quotation is compiled by the Supplier in considering the prevailing exchange rate, as well as the prevailing prices at such time, and accordingly, it may change without prior notice to the Client upon acceptance by the Client of such Quotation.
The price payable for the Work shall, unless otherwise expressly agreed to in writing between the Supplier and the Client, be the price set out in the accepted Quotation.
The price of the Work is exclusive of all taxes (including without limitation, value added tax), duties and levies, which shall be payable by the Client to the Supplier in accordance with clause 5.
The price of the Goods are exclusive of the costs of carriage and insurance to the Supplier’s Premises, which shall be payable by the Client to the Supplier upon invoice.
The Quotation furnished to the Client does not include electrical cabling, conduiting or provisions for the system, and shall be added to the Quotation as and when same are utilised.
Any additional site visits over and above those anticipated by the Supplier will be charged for at the discretion of the Supplier.
The Supplier’s Service Level Agreement and remote monitoring service is compulsory on all systems installed by the Supplier.
The Supplier may, by giving notice to the Client at any time before delivery, increase the price of the Goods, to reflect any increase in the cost of the Goods that is due to:
any factor beyond the Supplier’s control (including but not limited to foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
any delay caused by any instructions of the Client, or failure of the Client to give the Supplier adequate or accurate information or instructions;
any contingencies which the Supplier may not be aware of at the time that the Quotation was furnished to the Client.
The Client acknowledges that the images in the Proposal are for illustration purposes only, and that the Goods forming part of the price payable for the Work are as set out in the Bill of Quantities, which is incorporated in the Proposal as read with the Quotation, which the Client acknowledges he has fully acquaint himself with.
The Supplier reserves the right to substitute the Goods as specified in the Quotation, with alike product, should the manufacturer models change, or for any other reason whatsoever.
The Client shall be required to effect payment as follows:
On acceptance of Quotation – 60% (Sixty Percent);
Progress payment before delivery of Goods – 30% (Thirty Percent);
Seven days after completion of the Work – 10% (Ten Percent).
The deposit paid is not refundable should the Client terminate the Contract at any time, for any reason whatsoever. The Client acknowledges that the Supplier has injected substantial resources in preparation of commencement of the Work, to justify retention of the deposit paid by the Client.
The Client acknowledges that payment of the deposit does not secure the prices of the Goods, which is subject to the provisions contained in clause 4 above, unless the full Contract sum has been paid.
Notwithstanding the above, it is specifically recorded that the Supplier shall retain ownership of the Goods until such time as full payment has been received by the Client.
No payment by the Client shall be deemed to have been made until such time as it is received in the Supplier’s bank account.
The Client shall pay all amounts due under the Contract in full, without any retention, deduction or set-off. The Supplier may at any time, without limiting any other rights or remedies it may have, set-off an amount owing by it to the Client against any amount payable by the Supplier to the Client.
The Supplier may at its sole discretion, and without liability to the Client, refuse to complete the Work, whilst any invoice issued by the Supplier to the Client remains overdue and payable.
The Supplier shall use its reasonable endeavours to keep the Client reasonably informed of the anticipated time and date of completion of the Work.
Timeframes furnished to the Client with regards to completion of the Work are an indication only. Bearing in mind the nature of the Work, and more particularly, the fact that the Work is customised to the needs of the Client, the timeframes furnished to the Client may change.
RISK / TITLE
Title in the Goods installed shall not pass to the Client until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of the Work.
If the Client considers the work rendered to him/her is defective, then the Client must notify the Supplier in writing within 7 (seven) Business Days, which notice must include the details of the alleged defects.
The Supplier shall have no liability in respect of any defects arising or caused on or after the lapse of the aforesaid 7 (seven) Business Days, unless the common law or statutory warranty applies thereto.
Bearing in mind the nature of the Work, the Client acknowledges that it shall not be entitled to return the Goods or request a refund of any monies paid in respect of the Work.
LIMITATION OF LIABILITY
The Supplier shall not be liable to the Client, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss arising out of and / or in connection with this Contract.
The Supplier shall not be liable to the Client, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for:
any loss of profit;
any loss of business or opportunity;
any loss of anticipated savings; or
any costs of and / or associated with de-installation and / or re-installation of Goods.
Subject to 8.1 and 8.2, the maximum aggregate liability of the Supplier to the Client in respect of all losses arising under and / or in connection with the Contract, whether in contract, delict (including negligence), breach of statutory duty, or otherwise shall not exceed 100% (One Hundred Percent) of the price paid or payable by the Client for the Work.
The Supplier shall not be held liable to the Client, whether in Contract, delict including negligence, breach of statutory duty or otherwise, for any misrepresentation made by the Manufacturer’s Specifications.
The Client expressly acknowledges that by entering into this Contract with the Supplier, he/she agrees to the exclusions and limitations of liability set out herein.
The Goods supplied by the Supplier comes with a 1 (one) year manufacturer guarantee. This guarantee covers manufacturing defects only, and which guarantee period shall commence from the date that the Supplier purchases the Goods.
In the event that any unauthorised person tampers with the system installed by the Supplier, including but not limited to the cabling or the Goods, the guarantee as contemplated in 9.1 above, will become null and void.
It is the Client’s responsibility to properly and timeously complete the necessary Warranty documents so as to activate the aforesaid Warranty, and to ensure that same is posted to the manufacturer/importer.
Upon completion of the Work, and as read with clause 7.2 and 7.3 above, the Client shall be required to furnish the Supplier with the completed substantial/practical completion document, outlining any snag and adjustments required to the Work. The Client acknowledges that any snags and/or adjustments which are conveyed to the Supplier outside the aforesaid 7 (seven) days will be billed for accordingly.
The Parties to this Contract hereby select their respective domicilia citandi et executandi for all purposes of this Contract and / or any claim arising pursuant hereto as follows:
Client: The address and contact details contained in the Quotation
Neither Party shall be liable to the other Party in respect of any of its obligations in terms of the Contract, if such Party is prevented from fulfilling its obligations due to circumstances beyond its reasonable control.
The Contract constitutes the whole agreement between the Parties and supersedes all previous agreements between the Parties relating to its subject matter.
Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
Nothing in this condition shall limit or exclude any liability for fraud.
ASSIGNMENT AND SUBCONTRACTING
The Supplier may at any time assign or transfer all or any of its rights under the Contract.
The Client may not assign or transfer or purport to assign or transfer all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
The Supplier may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent, provided that the Supplier shall remain liable for such performance.
Failure or delay by the Supplier in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Client, shall not be deemed a waiver of any subsequent breach or default, and shall in no way affect the other terms of the Contract.
If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this condition shall not affect the validity and enforceability of the rest of this Contract.
Due to the complexity of the installation, the Supplier recommends the installation of a dedicated equipment rack/cabinet, lightning protection on all the Goods, earthing to the home, and a cool space for the installation of the Goods.
Whilst the Supplier endeavours to install the Goods with all reasonable care, the Supplier cannot be held responsible for damage to any cabling, conduit, gas piping or any similar infrastructure concealed in the walls, floors or roof of the building where the Work is conducted.
CERTIFICATE OF BALANCE
The Client agrees that the amount due and payable to the Supplier may be determined and proven by a certificate issued and signed by any director or manager or member or partner of the Supplier, whose authority need not be proven or by any independent auditor nominated by the Supplier. Such certificate shall be binding, and shall be proof of the indebtedness of the Client, and the Client shall bear the onus of proving that the amount is not due and payable.
The parties shall negotiate in good faith to settle any dispute that arises out of this Contract.
In the event of the parties not being able to settle any dispute, either party may approach a court of competent jurisdiction.
In addition, the parties may agree to arbitration, and shall conclude a written agreement to arbitrate within 7 (seven) days of the dispute arising, which shall contain all the details of the arbitration process.
Any and all intellectual property, which shall include, but shall not be limited to, the Supplier’s patents, registered or common law trademarks, service marks, design rights, applications for any of the aforegoing, copyright, trademark or business names and other similar rights or obligations, whether capable of registration or not, shall at all times remain with the Supplier, and the Client shall have no right thereto for any reason whatsoever.
The Client consents to the Supplier taking photos of the Work upon completion of same, which photos shall be used for, inter alia, marketing, submissions to competitions, or for any other purpose which the Supplier deems fit.
The legal costs incurred by either party in enforcing their rights in terms of this Contract, shall be claimable against the other party on the scale as between the agreement between the successful party and its particular attorneys.
BNC TECHNOLOGY WEBSITE USER AGREEMENT
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