Revised Copy January 2020
1.1. In these Terms and Conditions, the words set out hereunder shall have the meanings assigned to them hereunder:
1.1.1. “Supplier” shall mean Xpanda Security (Pty) Ltd;
1.1.2. “Purchaser” shall mean the party identified on the quote and to whom the quote was directed;
1.1.3. “parties” shall mean the Supplier and the Purchaser collectively;
1.1.4. “this contract” shall mean this written document, together with all annexures and amendments from time to time;
1.1.5. “deposit” shall mean 70% (SEVENTY percent) of the total purchase price, inclusive of VAT;
1.1.6. “effective date” shall mean the date of acceptance by the Purchaser of the quote;
1.1.7. “services” shall mean the supply and installation of the products in terms of the [quote/specs/order];
1.1.8. “Inland” shall mean the distance of 20 (twenty) kilometres from the seaside;
1.1.9. “Coastal” shall mean within 20 (twenty) kilometres of the seaside;
1.2. Headings of clauses shall be deemed to have been included for purposes of convenience only and shall not modify or affect the interpretation of the agreement.
1.3. Unless inconsistent with the context, words relating to any gender shall include the other genders, words relating to the singular shall include the plural and vice versa and words relating to natural persons shall include associations of persons having corporate status by statute or common law.
1.4. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the agreement.
1.5. The rule of construction that the contract shall be interpreted against the party responsible for the drafting or preparation of this agreement shall not apply.
1.6. The use of the word “including” followed by a specific example will not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule will not be applied in the interpretation of such general wording or such specific example.
1.7. A reference to a document includes an amendment or supplement to, or replacement or novation of, that document.
1.8. Schedules, annexures or appendices to this agreement will be deemed to be incorporated in, and form part of, this agreement, and expressions defined in this agreement will bear the same meanings in such schedules, annexures or appendices, as the case may be, which do not contain their own definitions.
1.9. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words will prevail.
2. PAYMENT TERMS:
2.1. The Purchaser shall pay the Supplier the deposit on the effective date and prior to any services being rendered in accordance with this agreement. The balance of the purchase price, including VAT shall be paid by the Purchaser before the date of installation, on booking of installation confirmation
2.2. Full payment upfront will guarantee a faster lead / delivery period as it reduces administration time.
2.3. The deposit shall be forfeited as the reasonable cancellation fee in the event that, through no fault of the Supplier and in the absence of notification from the Purchaser, the products are not installed, collected or received by the Purchaser, within 3 (three) months of the date of receipt of the deposit by the Supplier.
2.4. Should either party be prevented by reason of strikes, walkouts, other industrial disputes, acts of God, floods, war (whether declared or not), terrorism, sabotage, changes in law, statutory permission, the acts of any competent authority, vis major, casus fortuitus or any other cause whatsoever outside its control from performing its obligations in terms hereof, then such failure shall not be regarded as a breach of its obligations in terms hereof provided that:
2.4.1. the party subject to vis major shall give prompt notice to the other party of the nature and estimated duration of the vis major concerned;
2.4.2. the parties shall co-operate and collaborate together and use all reasonable efforts to overcome the vis major concerned and/or nullify its effect; and
2.4.3. any suspension of performance within the provisions of the above shall be limited to the period during which such inability shall exist and the period of this agreement shall be interrupted by the period of such suspension.
3. Should any amount due and payable by the Purchaser to the Supplier not be paid on the due date, the Supplier may suspend delivery and/or installation and demand payment prior to effecting delivery and/or installation.
4. Failure to pay any amount on the due date will result in the total contract price becoming due and payable with immediate effect.
5. The products shall remain the property of the Supplier until the full purchase price has been paid by the Purchaser, notwithstanding that the products may have been delivered and/or installed at the Purchaser’s nominated premises. In the event of the Purchaser not making full payment of the purchase price, the Supplier shall be entitled to remove the products from the premises, whether delivered or installed without having to procure a court order.
6. In the event of any dispute arising out of this contract, the parties hereby agree and consent to the jurisdiction of the Magistrate’s Court, irrespective of the amount involved in such claim.
7. This agreement shall be governed and interpreted in accordance with the laws of the Republic of South Africa.
8. The signatory warrants that she/he is duly authorised thereto in the event of the Purchaser being a juristic person, including but not limited to, unincorporated association, company or close corporation. Note: The signatory will be held personally liable as Purchaser in the event of the signatory not being duly authorised as required, should the Purchaser breach the terms of this agreement in any way whatsoever, including the failure to pay any amount on the due date.
9. Should there be any form of defect (in respect of materials or installations) or complaint from the Purchaser, the Purchaser shall within 3 (three) days after installation of the materials, give the Supplier written notice of such defect and/or complaint.
10. In the event of any claim for defects in respect of materials or installations, or complaint from the Purchaser, the Supplier reserves the right to inspect the products to assess whether the products have been properly maintained or have been neglected (see Guarantees).
11. The Supplier provides a range of standard colours which have been brought to the Purchaser’s attention. If the Purchaser orders a non-standard colour, the Supplier requires the Purchaser to furnish the Supplier with the correct colour reference. The Supplier undertakes to take all possible measures to match, as best as possible, the Purchaser’s choice of colour, however, the Supplier makes no guarantee regarding the matching of colours or surface finish.
12. In the event that the goods are to be hot dip galvanized, the Supplier advises as follows: (Xpanda recommend that the purchaser familiarise themselves with specifications of the Institute of Hot Dip Galvanising – http://www.hdgasa.org.za/technical/information-sheets/information-sheets-master-index/ )
12.1. The finish is inclined to be rough and bumpy with zinc deposits and tubular sections which may distort slightly.
12.2. Should the Purchaser reject any hot dip galvanized product due to the finishes mentioned above, the Purchaser shall be liable for any/all costs incurred to satisfy the Purchaser’s requirements, as the Supplier adheres to all requirements governed by the SABS ISO 9001/2018.
13. In the event of the Purchaser, for any reason, electing to cancel the agreement between the parties, the parties agree that the Purchaser shall be liable for a reasonable cancellation fee as follows:
13.1. Within 7 (seven) days of the effective date, provided that the products have not been ordered on the Purchaser’s behalf or the services rendered, no cancellation fee shall be payable; or
13.2. More than 7 (seven) days from the effective date, the Purchaser shall be liable for 50% of the cost of the services and the deposit shall be withheld in lieu thereof.
14. The Supplier will repair, at its option, any product or any component of a product found to be defective in materials or workmanship, within the stipulated guarantee period of the specific product of the date of delivery and/or installation as the case may be. This warranty is valid only in respect of the Purchaser, from the date of delivery and/or installation and may not be ceded, assigned or otherwise transferred. Proof of purchase is required to obtain warranty performance. The Supplier’s dealers, service centres, or retail stores offering the Supplier’s products do not have authority to alter, modify or in any way change the terms and conditions of this warranty.
15. It is noted that time is not of the essence, and lead time is indicative, in accordance with workload at the time of order. In the event of a delay in respect of the Factory lead time relating to this agreement, the Supplier shall notify the Purchaser of any such delay.
16.1. Any Electrical power required for installation of goods, shall be provided by the customer to Xpanda on request, free of charge.
16.2. The customer has been made aware that provision must be made for a fire-escape somewhere within the protected areas.
16.3. Whilst every precaution will be taken during the installation process, Xpanda will not be liable for any damage caused whatsoever, including but not be limited to, electrical wiring, waterpipes, plaster, tiles, carpets, cornices, skirtings or any similar damage caused during the installation of products.
17. No alteration or variation of this contract shall be of any force or effect unless recorded in writing and signed by both parties.