Terms and Conditions – © Evolution Computers 2019
We reserve the right to alter the terms and conditions at any time without notice.
The official non contract labour rate -for 2019
R.655 inc VAT per hour (during normal work hours)
There is a minimum charge of 1 hour for a callout.
Sub-contract clients get a discounted rate.
Travel charges are not included, and fluctuate with the price of fuel, and costs of transport.
Travel farther afield incurs a per Km charge and “time travelled” charges which are billed at the same rate as labour hours.
Additional charges may apply to locations which are farther afield.
Overtime during the week @ time and a half
Overtime on a Saturday @ double time
Overtime on a Sunday or public holiday @ triple time
There is a minimum charge of 1 hour for a callout.
Passwords – where applicable we do not give out user passwords, or Administrator Server passwords to users or owners. This is done to protect both ourselves and the users / owners. Faxed/emailed requests in writing, on a company letterhead, signed by a branch manager will be honored but will also void any warranties on our workmanship and on the functioning of a network / device once the password has been supplied.
Data loss – we are not responsible under any circumstances for loss of data, whether through our negligence or any other cause. Whilst all reasonable efforts will be made to prevent data loss of any kind, the user is solely responsible for their data and adequate backups.
Warranties – All hardware warranties are manufacturer supplied. All hardware carries a 1 year carry in warranty (unless otherwise specified) and remains the property of Evolution Computers until full payment is received. Warranty periods are calculated from the day that stock is procured on your behalf and not from the date of our invoice to you (the end user). We do try to make these two dates coincide but this is not always possible.
We will do our very best to take expert care of your data and equipment but the following two provisios apply:
Due to the nature of IT systems (constant updates, different vendors, viruses, user actions) we cannot warranty our labour or the operation of your equipment in any way.
Dead on the bench – where any piece of equipment that appears to be working, is transported from a customers premises to our workshop (or back to the customer) and found then to have failed completely, we shall not be liable for replacement or repair of that equipment. Old machines do die, and if that moment of death happens to coincide with transport to our workshop / or back to the customer, we cannot be held responsible.
Overdue accounts – The BUYER agrees that accounts older than 30 days will be handed over for collection and the BUYER will pay interest on overdue amounts at a rate determined by the collection agency and be liable for any and all legal fees.
The legal bits:
GENERAL TERMS AND CONDITIONS – © Evolution Computers 2019
1. INTERPRETATION :
1.1 The clause headings in this agreement have been inserted for convenience only and will not be taken into consideration in its interpretation.
1.2 Words and expressions defined in any subclause will, for the purposes of the clause of which that subclause forms a part, bear the meaning assigned to the words and expressions in that subclause.
1.3 This agreement, which includes the Purchase Order, constitutes the whole agreement between the parties and supersedes all prior verbal or written agreements or understandings or representation by or between the parties regarding the subject matter of this agreement, and the parties will not be entitled to rely, in any dispute regarding this agreement, on any terms, conditions or representations not expressly contained in this agreement.
1.4 The validity and interpretation of this agreement will be governed by the law of the Republic of South Africa.
1.5 Any reference to the singular includes the plural and vice versa.
1.6 Any reference to natural persons includes legal persons and vice versa and references to any gender include references to the other genders and vice versa.
2. DEFINITIONS :
In this agreement, unless inconsistent with or otherwise indicated by the context, the following terms will have the meanings assigned to them in this clause :
2.1 COMMISSIONING DATE :
The COMMISSIONING DATE will, subject to the provisions of clause 4.1, be the date on which the commissioning tests in respect of the item of EQUIPMENT have been completed to the satisfaction of the BUYER and the SELLER, as evidenced by an acceptance certificate by both parties. The acceptance certificate will constitute prima facie evidence of the COMMISSIONING DATE, of commissioning of the item of EQUIPMENT concerned and of the fact that the EQUIPMENT complies with and is operating in accordance with the terms of this agreement.
2.2 DELIVERY DATE :
The DELIVERY DATE in respect of the EQUIPMENT or any item of EQUIPMENT will be the date on which the item of EQUIPMENT is delivered at the LOCATION by the SELLER or a supplier appointed by the SELLER. A date note in respect of delivery as issued by the SELLER or the supplier and signed by the BUYER will serve as incontrovertible proof of delivery and the DELIVERY DATE.
2.3 EQUIPMENT :
The computer EQUIPMENT and OPERATING SYSTEM SOFTWARE set out in the Purchase Order.
2.4 LOCATION :
The physical address of the BUYER as set out in the Purchase Order, which will constitute the delivery and installation address for the EQUIPMENT and the OPERATING SYSTEM SOFTWARE.
2.5 OPERATING SYSTEM SOFTWARE
The computer OPERATING SYSTEM SOFTWARE set out in the Purchaser Order.
3. DELIVERY AND INSTALLATION :
3.1 The SELLER agrees to deliver and install the EQUIPMENT on the DELIVERY DATES and according to the payment terms set forth in the Purchase Order.
3.2 Contemporaneously herewith, the BUYER will execute licence agreements in respect of the OPERATING SYSTEM SOFTWARE.
3.3 The SELLER assumes no liabilities or obligations in respect of maintenance of the EQUIPMENT and the BUYER will for this purpose enter into separate EQUIPMENT maintenance agreements with the suppliers of the EQUIPMENT.
3.4 The provision of application software and the professional services involved in installing the application software and, if necessary, modifying the application software to satisfy the requirements of the BUYER will be undertaken by a supplier of application software and software development services acceptable to the SELLER and the BUYER. For this purpose, the BUYER will enter into separate software licence and maintenance agreements with such a supplier of software and software development services.
3.5 The BUYER will be responsible, at its expense, for the preparation of the LOCATION, which preparation will be completed at least 10 (TEN) days prior to the DELIVERY DATE indicated by the SELLER in respect of any item of EQUIPMENT.
The preparation will be conducted in accordance with the SELLER€™s installation procedures. The SELLER will supply the BUYER with a specification of the installation procedures to enable the BUYER to prepare each LOCATION in accordance with such specifications. The SELLER will, where required to do so, assist the BUYER in selecting one or more subcontractors, to be appointed by the BUYER, to provide whatever additional assistance may be required in the preparation of the LOCATION, provided that the SELLER will not be held liable in any way in respect of any obligations arising out of the acts or omissions of such subcontractors. The BUYER undertakes to maintain each LOCATION in accordance with the specifications of the SELLER and the SELLER assumes no liability or responsibility for EQUIPMENT failure or malfunction or any damage of whatsoever kind arising from such failure or malfunction where the failure or malfunction is due to non-compliance with the specifications of the SELLER. The SELLER will not be responsible for interconnecting the EQUIPMENT with equipment not sold by the SELLER.
3.6 The SELLER will bear all costs in respect of the delivery of the EQUIPMENT to the LOCATION and the installation thereof at the LOCATION. Where importation charges, installation and delivery charges are mentioned in the Purchase Order, these charges cover only :
Estimated packing and packaging charges ;
estimated transport and insurance charges arising prior to delivery ;
estimated clearing and forwarding duties ;
estimated expenses in respect of delivery of the items of EQUIPMENT ;
estimated EQUIPMENT assembly charges ; and/or
the estimated costs of acceptance and/or commissioning tests and any tests necessary to verify the correct operation of the EQUIPMENT or any item of EQUIPMENT.
The BUYER will bear all costs in respect of any structural alterations to the LOCATION or special apparatus, such as hoisting gear, which may be required to deliver or install the EQUIPMENT at the LOCATION and the BUYER will bear all costs in respect of the purchase, installation and assembly of emergency electrical power generating equipment should such items of equipment be required.
3.7 The SELLER will arrange and co-ordinate the delivery of the EQUIPMENT to the LOCATION, the unpacking and assembly thereof and any testing which may be necessary to verify, in respect of each item of EQUIPMENT, the correct operation of the item concerned.
3.8 The SELLER will notify the BUYER of the suppliers of each of the items of EQUIPMENT and the BUYER will accept delivery of the items of EQUIPMENT from each such supplier.
3.9 The items of EQUIPMENT will be delivered for installation only at the LOCATION and relocation thereof by the BUYER without the prior written consent of the SELLER will constitute an irremedial breach of this agreement.
3.10 The time given for delivery of any item of EQUIPMENT by the SELLER or a supplier of the item of EQUIPMENT, is given as accurately as possible but the DELIVERY DATE is not guaranteed and whilst every reasonable endeavour will be made by the SELLER to deliver on time, the SELLER will not be liable for any damage suffered by the BUYER in consequence of any failures in this regard, provided that the BUYER will be entitled to terminate this agreement if delivery of every item of EQUIPMENT referred to in the Purchase Order is delayed, for reasons which are not attributable to the BUYER, for more than 90 (NINETY) days from the DELIVERY DATE previously indicated by the SELLER.
3.11 The SELLER will make every reasonable attempt to accommodate delays requested by the BUYER regarding the agreed time for delivery of the EQUIPMENT.
3.12 If there is any delay in the delivery or the EQUIPMENT arising as a result of the fault or negligence of the BUYER, all risk in the EQUIPMENT and the responsibility for storage thereof after the scheduled DELIVERY DATE will rest with the BUYER and the SELLER will be entitled to make an additional charge to the BUYER in respect of the cost of transit, storage and insurance and any other costs or losses arising from the delay in the delivery of the EQUIPMENT.
3.13 The time for delivery of any item of EQUIPMENT is subject to automatic extension should manufacture, dispatch or delivery of any item of EQUIPMENT be delayed by any act or default on the part of the BUYER or circumstances beyond the control of the SELLER.
4. ACCEPTANCE AND COMMISSIONING
4.1 The COMMISSIONING DATE of the EQUIPMENT will be deemed to be the earlier of :
4.1.1 The date referred to in clause 2.1 ; or
4.1.2 the date on which the BUYER takes the item of EQUIPMENT concerned into beneficial use in the business of the BUYER.
4.2 If the BUYER without the prior written agreement of the SELLER delays commissioning of any item of EQUIPMENT, the BUYER will, on presentation of an invoice from the SELLER, pay the SELLER the reasonable charges and losses attributable to the delay. In addition, if the delay continues for more than 7 (SEVEN) days after the date on which the SELLER notifies the BUYER in writing that the SELLER or any supplier of any item of EQUIPMENT is ready to commission the item of EQUIPMENT concerned, the COMMISSIONING DATE will be deemed to be the date of the notice and payment for the item of EQUIPMENT so commissioned will become due.
4.3 After the COMMISSIONING DATE, the SELLER will not be liable to carry out any repairs or other work on the EQUIPMENT or any part of it.
4.4 The SELLER reserves the right to make any reasonable change to the design or configuration of any item of EQUIPMENT in fulfilling its obligations in terms hereof.
4.5 The SELLER reserved the right to terminate this agreement in the event that the BUYER obtains or purchases, from a supplier not approved by the SELLER, any item of equipment for use in conjunction with the EQUIPMENT, which approval will not be withheld unreasonably.
5. CHARGES AND PAYMENT
5.1 The charges of the SELLER in respect of the cost of the EQUIPMENT and the licence fees in respect of the right of the BUYER to use the OPERATING SYSTEM SOFTWARE are set out in the Purchase Order.
5.2 The charges of the SELLER set out in the Purchase Order are inclusive of all taxes and duties specifically mentioned in Section A, but are exclusive of Value Added Tax and other duties or taxes no mentioned in the Purchase Order, all of which will be paid by the BUYER.
5.3 The Purchase Order includes only the supply of the EQUIPMENT and OPERATING SYSTEM SOFTWARE as set out therein and the cost of any material supplied or work performed additional to that set out in the Purchase Order or rendered necessary by the order of any government or municipal authority, will be added to the contract price and paid by the BUYER.
5.4 The BUYER undertakes to effect payment of the full purchase price for each item of EQUIPMENT on the COMMISSIONING DATE.
5.5 The BUYER undertakes to pay compound interest monthly on all overdue payments due to the SELLER at a rate of 15.5% per annum.
5.6 The BUYER will not be entitled to withhold payment of any amount payable to the SELLER to satisfy any claim of the BUYER arising from this or any other agreement between the BUYER and the SELLER, nor will the BUYER be entitled to set off such an amount against the amount payable to the SELLER in terms of this or any other agreement.
5.7 The purchase price will be quoted in South African rand on the basis of the South African rand currency exchange rate ruling on the COMMENCEMENT DATE relation to the currency in the country of origin of the EQUIPMENT, as determined by the bankers of the SELLER.
5.8 The SELLER reserves the right to adjust the purchase price of the EQUIPMENT in the event that the SELLER€™S estimates in respect of importation charges, packing, installation and delivery charges as set out in Section A are incorrect or in the event of any fluctuation in the exchange rate between the South African rand and the currency of the country o origin of the item of EQUIPMENT concerned between the COMMENCEMENT DATE and the DELIVERY DATE. Should the SELLER exercise this right, the purchase price will be adjusted accordingly and the SELLER will include such an adjustment in the invoice it submits to the BUYER in respect of the item of EQUIPMENT concerned.
6. THE OBLIGATIONS OF THE PARTIES
6.1 The SELLER will keep the BUYER abreast of new developments and enhancements to the EQUIPMENT and the OPERATING SYSTEM SOFTWARE.
6.2 The SELLER warrants that it is empowered to licence or sub-licence the OPERATING SYSTEM SOFTWARE to the BUYER.
6.3 After the DELIVERY DATE the BUYER will be liable for any loss or damage to the PART OF THE SYSTEM so delivered, provided that :
6.3.1 The BUYER agrees to notify the SELLER immediately on commissioning of the EQUIPMENT of any defects to or shortage in respect of any item of EQUIPMENT, failing which the BUYER will be deemed to have accepted the EQUIPMENT in good order and condition and the BUYER will not thereafter be entitled to raise a claim against the SELLER that the EQUIPMENT is defective ;
6.3.2 in the event of the BUYER notifying the SELLER of any such damage, shortage or defect, the SELLER will ensure that the defect, damage or shortage is made good and in this respect, the liability of the SELLER will be limited to arranging for the shortage to be made up or the damage to be repaired or where the damage is material, for the damaged items of EQUIPMENT to be replaced.
6.4 The SELLER will not be liable for any delay, failure, breakdown, damage or injury caused by :
6.4.1 Equipment, programs and services supplied by or obtained by the BUYER without the consent or knowledge of the SELLER; or
6.4.2 EQUIPMENT or programs modified by the BUYER or any third party not authorised to do so in terms of this agreement ; or
6.4.3 the actions or requirements of any telecommunications authority or a supplier of telecommunications services or equipment.
6.5 In no event will the SELLER be liable to the BUYER for loss of profits or for incidental, special or consequential damages arising out of or in connection with the sale, delivery, installation, servicing, performance or use of the EQUIPMENT.
7. TERMINATION AND BREACH
7.1 In addition to any rights of termination which either party may have at common law, this agreement may be terminated by one party if the other party commits a breach of any of the terms of this agreement and fails to rectify the breach within a period of 30 (THIRTY) days of receipt of a written notice specifying the breach.
7.2 On the occurrence of any one or more of the following events :
7.2.1 On default of the BUYER to make any payment on due date; or
7.2.2 in the event of insolvency, liquidation or judicial management proceedings being instituted against the BUYER or the BUYER making any arrangement in contemplation of insolvency,
the entire balance of all and any money due by the BUYER to the SELLER will immediately become payable and, failing payment within 3 (THREE) days thereof the SELLER may at its option either cancel this agreement or require specific performance, provided that in either case the SELLER may recover all damages it may suffer as a result.
7.3 In addition to the rights granted to it herein, the SELLER will be entitled, without prejudice to its other rights or remedies at law, suspend any further deliveries of EQUIPMENT under this agreement.
7.4 The BUYER will be liable for all costs incurred by the SELLER in connection with the recovery of the EQUIPMENT or of money owing by the BUYER to the SELLER, such costs to be paid on an attorney and own client scale.
8. INTELLECTUAL PROPERTY INDEMNITY
The SELLER warrants that, to the best of its knowledge, the EQUIPMENT and OPERATING SYSTEM SOFTWARE forming part of the EQUIPMENT do not infringe upon or violate any patent rights or copyright of any third party.
9.1 Validity – If any provision of this agreement is found or held to be invalid or unenforceable, the validity of all the other provisions hereof will not be affected thereby and the parties agree to meet and review the matter and if any valid and enforceable means is reasonably available to achieve the same object as the invalid or unenforceable provision, to adopt such means by way of variation of this agreement.
9.2 Severability – In the event that any of the terms of this agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable. If any invalid term is capable of amendment to render it valid, the parties agree to negotiate an amendment to remove the invalidity.
9.3 Variation – No variation of or addition to this agreement will be of any force or effect unless reduced to writing and signed by the parties.
9.4 Waiver – No waiver on the part of either party of any rights arising from a breach of any provision of this agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.
9.5 Force majeure – In the event that either party is unable to perform any obligation hereunder due to any circumstances beyond its control, including the action, intervention, or decree of any government, and such circumstances are not caused by the fault of a party and continue for a period of at least 60 (SIXTY) days, either party may terminate this agreement by means of written notice to the other party.
9.6 Assignment – The BUYER will not e entitled to assign, cede or transfer any rights or obligations acquired in terms of this agreement in whole or in part to any other party or person without the prior written consent of the SELLER which will not be withheld unreasonably.
9.7 Notices – The parties choose the addresses set out in the Purchase Order as their domicilia citandi et executandi for all purposes under this agreement, whether in respect of the payment of money, the service or delivery of court process, notices or other documents or all other communications.
9.7.1 Any notice or communication required or permitted to be given in terms of this agreement will be valid and effective only if it is in writing, but, where, in terms of this agreement, any communication is required to be in writing, the term €œwriting€ will include communications by telefax.
9.7.2 Any party may by written notice to the other party, change its telefax number or the address chosen as its domicilium citandi et executandi, to another telefax number or address which is not constituted exclusively by a post office box address. The change will become effective on the fifth business day from the deemed receipt of the notice by the addressee.
9.7.3 Any notice to a party sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at its domicilium citandi et executandi will be deemed to have been received on the fifth business day after posting (unless the contrary is proved).
9.7.4 Any notice to a party delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi will be deemed to have been received on the day of delivery (unless the contrary is proved).
9.7.5 Any notice to a party sent by telex or telefax to its chosen telex or telefax, will be deemed to have been provided, unless the contrary is proved, immediately upon the issuance, by the transmitting telefax machine, of a report confirming correct transmission of all the pages of the document containing the notice.
9.7.6 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party will be an adequate written notice or communication to it, notwithstanding that it was not sent to or delivered as its chosen domicilium citandi et executandi
9.8 Cancellation of orders on the SELLER – If an order placed on the SELLER by the BUYER in terms hereof is cancelled for any reason prior to delivery having been completed, and the SELLER accepts that cancellation, the BUYER will be liable for all costs incurred up to the date of cancellation.
9.9 Ownership – Notwithstanding delivery, ownership of the EQUIPMENT will remain vested in the SELLER or a supplier appointed by the SELLER until the entire purchase price and all other amounts due to the SELLER in terms of this agreement have been fully paid. The BUYER undertakes to keep the EQUIPMENT in good condition and in a state of good repair (fair wear and tear excepted) and not to encumber or dispose of the EQUIPMENT or permit the EQUIPMENT to be encumbered or attached by operation of law, nor to remove the EQUIPMENT or permit the removal thereof from the LOCATION.
9.10 Where, in this agreement, any approval is to be given or obtained, such approval will not be withheld unreasonably.
9.11 All EQUIPMENT and materials supplied by the SELLER or a supplier of the EQUIPMENT or materials, will be subject to the standard specifications and conditions of the SELLER or the supplier, both of whom will have the right to alter the specifications and conditions at any time, provided that they are not inferior to those previously specified.
© Evolution Computers 2019