Terms & Conditions
Contents
1. Indemnified Parties against any claim brought against us or any of the other Indemnified Parties by any visitor to a place where the Equipment is used arising from any loss destruction or damage to property or any death injury illness or trauma and all economic loss suffered as result thereof caused by or attributable to any product failure or you supplying or providing access to any unsuitable unsafe defective or hazardous goods as these terms are defined in the CPA or the failure to provide adequate warnings or instructions in relation to any hazard arising from or associated with the use of any goods as contemplated in the CPA 10 Breach 10 1 You shall be in default of your obligations in terms of this Agreement if you 10 1 1 fail to pay any amount due to us on or before the due date thereof or 10 1 2 commit any other breach of any material term of the Agreement and fail to remedy such breach within 3 three Business Days from receipt of a written notification from us which requires that you remedy the said breach or 10 1 3 allow any judgment against you to remain unsatisfied for a period of 5 five Business Days or 10 1 4 compromise or attempt to compromise any debt with any of your creditors or 10 1 5 are provisionally or finally sequestrated liquidated wound up or placed under business rescue or curatorship or cease to conduct business 10 1 6 if you are given notice by us twice or more in any 12 twelve month period2. to that Party s successors in title and assigns allowed in law Narich Maintenance Services Agreement v1 0 Initial Page Here Last Updated 2 February 2015 Page 2 of 8 1 1 14 Prime Rate means the publicly quoted basic rate of interest compounded monthly in arrears and calculated on a 365 three hundred and sixty five day year irrespective of whether or not the year is a leap year from time to time published by Narich s bankers from time to time as being its prime overdraft rate as purportedly certified by any representative of that bank whose appointment and designation it shall not be necessary to prove 1 1 15 Sales Quotation and Agreement means the sale agreement entered into between Narich and the Customer in terms of which Narich sold the Equipment to the Customer 1 1 16 Services means those maintenance services stipulated in part 4 of the Schedule which will be provided by us to the Customer on the terms and conditions set out in this Agreement 1 1 17 Schedule means the document which specifies certain salient details of the maintenance services between Narich and the Customer which Schedule is subject to these Terms and Conditions 1 1 18 Sites means the location s stipulated in part 3 of the Schedule where the Equipment is located 1 1 19 South Africa means the Republic of South Africa 1 1 20 Terms and Conditions means the terms and conditions contained in this document 1 1 21 Travel Fee means the f
3. 7h00 on a Business Day 1 1 6 CPA means the Consumer Protection Act No 68 of 2008 1 1 7 Customer or you means the entity referred to in part 1 of the Schedule 1 1 8 Equipment means the equipment as specified in part 3 of the Schedule and includes any related parts and components 1 1 9 Laws shall mean all constitutions statutes regulations by laws codes ordinances decrees rules judicial arbitral administrative ministerial departmental or regulatory judgments orders decisions rulings or awards policies voluntary restraints guidelines directives compliance notices abatement notices agreements with requirements of or instructions by any Governmental Body and the common law and law shall have a similar meaning 1 1 10 Maintenance Fee means the maintenance fee payable by the Customer to Narich as stipulated in part 4 of the Schedule or any invoice furnished to the Customer 1 1 11 Narich or we or us means Narich Proprietary Limited registration number 2012 009858 07 a limited liability private company duly incorporated according to the Laws of South Africa 1 1 12 Outstanding Amount means at any time the amount outstanding and owed by the Customer in respect of the Equipment serviced including any other related charges levied in terms of this Agreement 1 1 13 Parties means the Customer and Narich and Party shall mean any one of them as the context may indicate and include a reference
4. FSA rules which arbitration shall be administered by AFSA 15 3 Where we elects not to proceed by way of arbitration in respect of any dispute in terms of 15 2 you hereby consent and submit to the non exclusive jurisdiction of the Western Cape High Court Cape Town but we may seek appropriate relief in any other competent jurisdiction of our choice 16 General 16 1 The clause headings in this Agreement have been inserted for convenience only and shall not be taken into account in its interpretation 16 2 If any definition contains a substantive provision conferring rights or imposing obligations on any Party effect shall be given to it as if it were a substantive provision in the body of this Agreement notwithstanding that it is only in the interpretation clause 16 3 If any period is referred to in this Agreement by way of reference to a number of days the days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day in which case the last day shall be next succeeding Business Day 16 4 You acknowledge that at the time of signing the Schedule the Schedule was fully completed and all the particulars therein are true and correct 16 5 If any provisions of this Agreement are found to be unlawful unenforceable or invalid it shall be deemed to be separate and severable from the remaining provisions of this Agreement and to the extent that same is unlawful
5. NARICH Pty Ltd NARICH Creative Innovation COMPLETE COLOUR AND LIGHT SOLUTIONS SCHEDULE TO THE STANDARD TERMS AND CONDITIONS FOR MAINTENANCE CERTIFICATION SERVICES CUSTOMER INFORMATION Full Name of Legal Entity Individual Registration Number ID Number Passport Number Physical Address Postal Address Telephone Number Fax Number VAT Registration Number Director Responsible Purchase Order Other Directors Annual Turnover for the purposes of the Consumer Protection Act No 68 Over R2 million YES NO of 2008 Full Name ID Number Position Telephone Number Cell Number Email Fax Number Instrument Description Serial number Site Address of Equipment ale 2 3 4 MAINTENANCE PACKAGE AND FEES Maintenance Service Package Service Period start date Service Period end date Maintenance Fee Additional Fee Travel Fee As per Narich s standard travel rates y 21 Clare Street Gardens Cape Contractual Add for del g 3 th ARTES EI EIR Town 8001 Warranty Period monts 50 deposit unless otherwise Payment Terms A indicated Quote reference Narich Pty Ltd Reg No 2012 009858 07 Directors LR Majewski NM Majewski Postal address PO Box 203 Milnerton 7435 South Africa Physical address 21 Clare Street Gardens Cape Town 8001 Tel 27 0 21 462 2499
6. ase email this form as a scanned attachment to accounts narich co za Narich Maintenance Services Agreement v1 0 Last Updated 2 February 2015 Initial Page Here Page 8 of 8
7. bt the Services do not include services in respect of malfunctions or damage resulting from 5 6 1 1 incorrect use of the Equipment 5 6 1 2 your negligence or 5 6 1 3 failure or fluctuation of electrical suppliers riots insurrection hardware failures accidents or natural disasters 5 6 2 We shall not be obliged to provide any Services where there is a refusal difficulty or inability of us to obtain access to the Site for the performance of our obligations hereunder where such difficulty or inability is a result of an action or inaction of you your employees or your agents Location of Equipment All Equipment shall remain on the premises specified at the time of purchase in terms of the Sales Quotation and Agreement and may not be removed therefrom without the prior written consent of Narich You undertake to notify us in writing of the change of Site of the Equipment as provided for in part 3 of the Schedule Where required we will reinstall the Equipment at our additional hourly fees 7 General Responsibilities 7 1 You shall 7 1 1 use the Equipment correctly and in accordance with the user manual and in accordance with the manufacturers guidelines 7 1 2 designate your key operator to request the Services and inform us accordingly 7 1 3 where the Premium On Site maintenance package is selected provide us with access at all reasonable times to the Site in order to perform the Services 7 1 4 not make any modif
8. e Fax SA only 086 527 8714 Email colour narich co za e Website http www narich co za Initial Page Here Page 1of 8 Maintenance Service Packages Standard allows you to choose the time to send in your instruments for calibration maintenance service on an ad hoc basis Premium is a return to base service offering preventative annual maintenance for three years PREMIUM Cleaning of the instrument v 4 Calibration check in line with Konica Minolta procedure v v Adjustment if necessary v v Printed Certificate showing traceability of calibration v v Annual maintenance standard 1 Year Discount from Standard Rates v 5 STANDARD TERMS AND CONDITIONS FOR MAINTENANCE SERVICES PERFORMED BY NARICH PROPRIETARY LIMITED TERMS AND CONDITIONS 1 Interpretation 1 1 In this Agreement unless the context indicates otherwise 1 1 1 Additional Fee means the hourly rate at which any services additional to the services will be rendered by us from time to time the current rates being those stipulated in part 4 of the Schedule 1 1 2 AFSA means the Arbitration Foundation of Southern Africa 1 1 3 Agreement means the agreement comprising the Schedule and the standard terms and conditions as set out in this document 1 1 4 Business Day means a day which is not a Saturday Sunday or gazetted public holiday in South Africa 1 1 5 Business Hours means from 08h30 until 1
9. ed by you to us whether placed directly or through the Customer s representative nor for the verification of the Customer representative s authority to issue an order request and the Customer hereby indemnifies and agrees to hold us harmless from any and all claims and liabilities arising from our acceptance of such order request or instruction 5 2 Procedure for Requesting the Services 5 2 1 You shall whenever you require us to perform the Services adhere to the following procedure the Request Procedure 5 2 1 2 the Request Procedure form on the website must be completed 5 2 1 3 We shall not be obliged to provide the Services unless the Request Procedure is followed by you We shall however be entitled but not obliged to waive compliance with this requirement 5 3 Response Times 5 3 1 We shall during Business Hours and within a reasonable time from receipt of request provide the Services 5 3 2 We shall use our reasonable endeavours to perform the Services promptly but any response times furnished by us are merely estimates and no warranty is given in respect of any times for response or performance by us 5 4 Additional Services We shall not be held liable to perform any Repair Services in addition to the Certification Services but should we agree to perform any additional services they will be offered to the Customer at the Additional Fee and on such terms as the Parties may agree in writing from time to time It is
10. ed on the date of transmission provided that the transmission or receipt report does not indicate otherwise 13 3 Any Party shall notify the other Party in writing on 10 ten Business Days notice of a change of address provided that no address may be changed to a post office box or poste restante 13 4 You shall notify us in writing of any changes in the information provided to us in the Schedule We shall not be liable for any damages loss or expenses suffered or incurred by you as a result of the non compliance by you with this clause 13 4 Legal Costs In the event of a default by you under this Agreement you will be liable for all legal costs which will include but not be limited to 14 1 legal costs on the scale as to attorney and own client including all cost of an advocate instructed by the attorney 14 2 collection charges and tracing fees at the recognised tariff of attorneys applicable from time to time in respect of such collection 14 3 VAT added thereon and 14 4 where appropriate the cost of an arbitration including the costs of the arbitrator s 15 Applicable Law Jurisdiction and Dispute Resolution 15 1 This Agreement will in all respects be governed by and construed under the Laws of South Africa 15 2 Any dispute arising in the Republic of South Africa shall at the sole discretion of us be determined by arbitration in Cape Town Such arbitration shall take place in accordance with the provisions of the A
11. ee charged for travelling to sites located more than 40 km forty kilometres from the Narich service centre the current fee being the rate stipulated in part 4 of the Schedule 1 1 22 VAT means value added tax in terms of the Value Added Tax Act No 89 of 1991 as amended and 1 1 23 Warranty means the manufacturer s warranty on the Equipment the terms and conditions which are included in this agreement by way of reference 1 2 Any reference to the singular includes the plural and vice versa 1 3 A natural person includes a juristic person and vice versa and 1 4 any gender includes the other genders 2 Important Notices 2 1 This document contains the Terms and Conditions on which we maintain and service Equipment on behalf of Customers who are consumers for the purposes of the CPA namely Customers that are natural persons contracting in their individual capacity or small businesses with an annual turnover or gross asset value of less than R2 million 2 2 This Agreement contains terms and conditions which appear in similar text style to this clause and which 2 2 1 may limit the risk or liability of Narich or a third party and or 2 2 2 may create risk or liability for the Customer and or 2 2 3 may compel the Customer to indemnify Narich or a third party and or 2 2 4 serve as an acknowledgement by the Customer of a fact 2 3 To the extent that the Customer is a consumer for the purposes of the CPA the Customer s attention is dra
12. hindered interfered with curtailed or prevented by 12 1 1 any circumstance beyond the reasonable control of either Party including but not limited to insurrection war terrorism explosion bombing revolution riot civil commotion legal and illegal strikes lock outs inability to obtain labour or materials fire flood storm or other acts or elements of God accident government restrictions or appropriation or other causes whether like or unlike the aforegoing 12 1 2 any shortage curtailment failure or cessation of supply of Equipment or any parts thereof 12 1 3 compliance with any order demand or request of any international national port transportation local or other authority or agency or anybody or person purporting to be or to act for such authority or agency 12 1 4 any strike lock out stayaway go slow or labour dispute whether or we are a party thereto or would be able to influence or procure the settlement thereof and whether or not alternative labour is provided or could have been provided or the cause is only partial Narich Maintenance Services Agreement v1 0 Initial Page Here Last Updated 2 February 2015 Page 6 of 8 13 14 Domicilium and Information 13 1 You hereby choose as your domicilium citandi et executandi for all purposes under or arising from this Agreement your physical address provided to us in part 1 of the Schedule 13 2 Any notices sent by email shall be deemed to have been receiv
13. ication or addition to the Equipment 8 Statutory Warranties 8 1 8 2 8 3 8 4 We warrant and represent that all spare parts used by us will be free from defects in materials and workmanship for a period of not less than 6 six months from the date of installation of the spare part in your Equipment Notwithstanding the provisions of clause 8 1 above 8 2 1 if any defect in the Equipment or components of the Equipment relates to acts omissions or alterations contrary to the instructions of or when the Equipment is no longer under the control of us we will not be liable for those defects including in respect of any possible liability in terms of the implied warranty of quality contained in the CPA and 8 2 2 any warranty given by us will cease to apply if any material information provided by you specifically insofar as the intended use of the Equipment is concerned is incomplete or incorrect or if there is any material change in operating conditions or misuse abuse or material neglect of the Equipment by you It is your duty to return any defective goods to our premises On return of defective goods we may at our sole discretion exchange the goods grant credit to you or return the goods to the manufacturer under the manufacturer s warranty A qualifying customer may elect to rely on either the right of return under the manufacturer s warranty or any statutory right of return imposed by the CPA but not both Save as may be e
14. in terms of clauses 10 1 1 or 10 1 2 above 10 2 If you are in default in accordance of any of the provisions of clause 10 1 above we shall without prejudice to any other rights that we may have at Law or in terms of this Agreement be entitled to 10 2 1 cancel this Agreement on written notice to you or 10 2 2 claim specific performance of our obligations in terms of this Agreement and 10 2 3 in each of the above events to claim damages from you 10 3 Without derogating from the provisions of 4 1 if you cancel or purport to cancel this Agreement then notwithstanding anything to the contrary herein the Outstanding Amount shall immediately be due and payable by you to us 11 Certificate of Indebtedness 11 1 A certificate signed by any director whose appointment authority or qualification need not be proved for the time being of Narich shall be 11 1 1 prima facie proof of the quantum of the Outstanding Amount and 11 1 2 valid together herewith for any purpose and as a liquid document alternatively as proof of a liquidated amount in any Court or forum of competent jurisdiction for the purpose of obtaining provisional sentence summary judgement or any other judgement against you and you acknowledge your indebtedness in respect of any amount so certified 12 Force Majeure 12 1 Neither of the Parties shall be responsible for any failure to fulfil its respective obligations under this Agreement if fulfilment has been delayed
15. specifically recorded that the Customer shall be responsible for the cost and payment of any parts required for the repair of the Equipment 5 5 Warranty 5 5 1 The repair or replacement of components of the Equipment supplied by us to you carry a 3 three month manufacturer s warranty and your rights except insofar as the CPA gives you additional rights in respect of defective goods or goods that fail are limited to the manufacturer s warranty A qualifying customer may elect to rely on either the manufacturer s warranty or any statutory warranty implied by the CPA and set out in clause 8 but not both 5 5 2 The contractual Warranty only covers the repair or replacement of components of the Equipment which are defective as a result of material or manufacturing faults and only for the duration of the warranty period 5 5 3 In order for the warranty to be valid the Equipment must at all times be operated within the product specifications and must be maintained and cared for in accordance with the user manual 5 5 4 If we determine after being called to the Site that the problem is not covered under the Warranty you will be responsible for all costs of the call out and if required the repair or rectification of the problem at the additional and travel fee 5 6 Service Exclusions Narich Maintenance Services Agreement v1 0 Initial Page Here Last Updated 2 February 2015 Page 4 of 8 6 1 6 2 6 3 5 6 1 For the avoidance of dou
16. such overdue amounts will bear interest at 1 5 one point five percentage points above the Prime Rate calculated from the due date of payment until the date of full payment both days inclusive 4 2 We may appropriate any payments made by or on behalf of you to any indebtedness of yours of whatsoever nature and all such payments shall first be allocated to accrued interest 4 3 Notwithstanding anything to the contrary in this Agreement we may vary the Maintenance Fee Additional Fee and travel fee at any time provided that 90 ninety day s written notice is given to you 5 Services 5 1 Services 5 1 1 You will receive Maintenance Services under the package specified in part 4 of the Schedule or as you may separately order from us 5 1 2 We will subject to the provisions of this Agreement make inspections carry out such adjustments and repairs and replace such parts as we or our authorised dealer may deem necessary to keep the equipment in good working order throughout the Service Period 5 1 3 We will perform the maintenance Services at either of our facilities in Johannesburg or Cape Town All Services shall be performed in compliance with the applicable manufacturer s manuals and procedures 5 1 4 Your order or request for Services to be performed shall be deemed to be proper and correct We shall not be liable or responsible for any claim for damages whatsoever arising from an improper or incorrect order or request for Services issu
17. unenforceable or invalid be deemed to be pro non scripto 16 6 No extension of time or other indulgences granted by us to you in respect of its obligations will constitute a waiver or novation of or otherwise affect any of credit provider s rights to enforce strict compliance with the terms of this Agreement 16 7 You shall not be entitled to cede assign or delegate any of your rights and or obligations in terms of or arising from this Agreement to any third party 16 8 No alteration consensual cancellation novation or variation of or addition to this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorised representatives Narich Maintenance Services Agreement v1 0 Initial Page Here Last Updated 2 February 2015 Page 7 of 8 16 9 This Agreement constitutes the whole agreement between the Parties and no Party shall be bound by any undertakings representations warranties and promises or the like not recorded herein 6 SIGNATURE Full Name of duly authorised signatory Designation of signatory Signature Date Signed Place Signed BY YOUR SIGNATURE HERETO YOU AGREE AND UNDERTAKE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND WARRANT THAT YOU ARE DULY AUTHORISED TO REPRESENT THE CUSTOMER AND TO BIND THE CUSTOMER TO THIS AGREEMENT NB Ple
18. wn to these Terms and Conditions because they are important and should be carefully noted 2 4 Nothing in this Agreement is intended to or must be understood to unlawfully restrict limit or avoid any rights or obligations as the case may be created for either of the Customer or Narich in terms of the CPA 3 Service Period This Agreement shall endure until each Party fulfils its respective obligations where after it will automatically lapse and be of no further force or effect Service Period 4 Charges In consideration for us rendering the Services you agree to pay the Maintenance Fee to us A deposit as reflected on the Schedule shall accompany your order and is a condition precedent to secure the Maintenance Services the Deposit In respect of any additional services as contemplated in clause 5 4 you agree to pay the Additional Fees to us We will submit an invoice to you for the Maintenance Fee Additional Fees and the travel fees if any and such invoice shall be paid within 30 thirty days from the date of invoice The terms of payment shall unless otherwise agreed be a 50 fifty percent deposit with the balance payable on presentation of our invoice Narich Maintenance Services Agreement v1 0 Initial Page Here Last Updated 2 February 2015 Page 3 of 8 4 1 Without prejudice to any of our rights in terms of this Agreement should any payment under or arising from this Agreement not be paid by the due date thereof then
19. xpressly set out in clause 8 1 of this Agreement or the Sales Quotation and Agreement no representations or warranties of whatsoever nature are made or given or shall be deemed to have been made or given by us or our agents or employees to you in connection with the Services and in respect of the Equipment 9 Indemnity and Limitation of Liability 9 1 9 2 You indemnify and hold us harmless from any and all expense loss damage or liability arising out of your receipt use and storage of the Equipment unless such expense loss damage or liability is due entirely to our gross negligence You further indemnify us against all damage and liability arising from any act or omissions of you and or your employees servants clients agents or subcontractors in connection with the Equipment We shall not have any liability howsoever arising and whether as a result of a breach of contract negligence or otherwise for any loss of profit anticipated profit physical loss or damage to cargo or loss of contract s in each Narich Maintenance Services Agreement v1 0 Initial Page Here Last Updated 2 February 2015 Page 5 of 8 instance whether such losses are direct consequential or otherwise nor without prejudice to the aforegoing shall we be liable for any consequential indirect or special losses or special damages suffered by you 9 3 To the fullest extent permitted by law you indemnify us and our employees contractors and agents
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