Fenster Standard Terms & Conditions
The Client hereby appoints Fenster to provide product and services to the Client and Fenster agrees to do so in terms of the conditions and terms set forth in this agreement.
The Client and Fenster agree that this document is an annexure to the quote which the Client has already signed and agreed upon.
“Client” means ___________________________________________.
“Client Representative” means _______________________________.
“Goods” refers to any product manufactured or supplied by Fenster to a client;
“Project” refers to the goods supplied by Fenster as determined by the quote;
“Site “refers to the site identified by the client and indicated on the quote supplied by Fenster;
“Business day” means any day other than a Saturday, Sunday or Public Holiday;
“Final Measurements” means final measurements of all relevant surfaces and openings to be used to calculate the dimensions of the units ordered by the client from Fenster;
“Measurement Sheet” means the measurement sheet provided by Fenster which indicates the final measurements of the units ordered by the client in terms of this agreement;
“confidential information”, in relation to Fenster, includes, but is not limited to any non-public information of a Disclosing Party including but not limited to business plans, products, technical data, specifications, documentation, rules and procedures, contracts, presentations, know-how, product plans, business methods, product functionality, services, data, customers, markets, competitive analysis, databases, formats, methodologies, applications, developments, inventions, processes, payment, delivery and inspection procedures, designs, drawings, algorithms, formulas, or information related to engineering, marketing, or finance.
2. CLIENT ACCEPTANCE
The Client acknowledges that by Fenster acceptance of this instruction that:
- The products and services included in the quotation to which these terms and conditions are attached can only be reserved for purchase by the client once receipt of a signed customer undertaking of the relevant quote by client to Fenster (Pty) Ltd (“Fenster”), and a non-refundable 50% (fifty percentage) deposit has been paid to Fenster to secure such order, or as per deposit agreed upon in writing;
- The Client accepts that they are liable for the specified amount to be charged in terms of the quote issued by Fenster;
- The client understands and accepts all cost to be incurred by him by the creation of this instruction, both costs indicated on the quote as well as any other ancillary costs which may arise out of this instruction.
- Fenster has free access to or onto the clients site/property/premises to remove any product not paid for in full and the client hereby consents to the removal of such product.
The Client accepts that due to the nature of the Product supplied by Fenster, (i.e. the product is manufactured for a specific project and cannot be used on another site), all cancellation costs as per this agreement are deemed equitable and reasonable.
Due to circumstances beyond Fester’s control, Fenster reserves the right to substitute any party to this agreement with any other party it deems necessary as appointed by Fenster.
4. FINAL MEASUREMENTS
4.1. Quotations provided by Fenster to the client are based on information and requirements provided for by the client to Fenster prior to the quotation being created by Fenster. Please note that the client is required to sign the quote at least 30 days prior to final site measurements being made by Fenster. Fenster’s invoice and final preparation is based on this quotation unless alternative arrangements have been made with the appropriate Fenster Sales Executive.
4.2 In order for Fenster to provide an accurate and professional product, final measurements for product can only be effected when:
4.2.1 The entire project is ready for measurement once the following is complete:
18.104.22.168 All final plasterwork is done, including rhino lighting;
22.214.171.124 All levels are completed to specification and the client or his representative has signed off the measurement sheet provided by Fenster;
126.96.36.199Subject to the terms and conditions in paragraph 4.1 supra.
4.3 Please note that Fenster cannot be held responsible for any size changes that might occur; due to added plaster works done after final measurements have been taken.
4.4 PLEASE NOTE that in the event that the client/builder /representative /agent any party on site effect changes to any relevant area which has the effect that Fenster has to execute fury its work in order to remedy the above Fenster shall charge the client as follows:
- Five Hundred rand per hour for any extra time spent on site;
- Travel at R7-00 per kilometre as calculated from Fenster head office to the clients site;
4.5. CHANGES TO UNITS AFTER PROJECT COMMENCEMENT:
4.5.1. If the client changes a unit after project commencement, the changed unit together with the entire project must be paid for in full. Thereafter an order needs to be placed for the new unit to replace the changed unit, together with a 50% deposit to commence production. The same terms & conditions apply for the new unit.
5. FLOOR LEVELS
In the event that Client floor levels are not ready by final measurements and Fenster is required to determine final levels of floor, this will be done by laser at a charge of R25p/m2. The client’s representative & builder need to be present for this to sign off the final measurements for each door.
6. PERIMETER AROUND UNITS
The perimeter of each unit will be approximately 3-4mm smaller on all sides in order to fit and seal the window into the opening.
7. LEAD TIME AND VARIATION OF PRICES
Fenster’s lead time is 6-8 weeks and applies as follows:
7.1 Lead Time will commence once the following suspensive conditions have been fulfilled by the client:
- The client submits a accepted and signed quote to Fenster;
- The client submits Fenster’s signed terms and conditions;
- The client submits the signed client undertaking to Fenster;
- Fenster has effected and completed Final Measurements of the project
7.2 Once all the above conditions have been met as well as payment effected in terms of these terms and conditions the Lead time period will commence.
8.1 The client is required to pay a non-refundable deposit of 50% of the quotation amount as soon as the client accepts and signs the quotation.
8.2 This amount should be paid into the following bank account:
Account holder: Fenster (Pty) Ltd.
Bank: First National Bank
Branch code: 254-605
Account number: 62362482350
Reference: Include our quotation number as reference.
8.3 Please note that thereafter a further payment of 40% of the quotation amount is required once Final Measurements are finalised by Fenster, and prior to on site delivery of goods.
The prices quoted are subject to change at the instance of the supplier of the quoted items and such change in prices may only be effected prior to final measurements and payment of this deposit.
The remaining 10% (ten percentages) will be required after delivery and installation of the goods.
Any other arrangement that client requires must be added to our standard terms and conditions in writing and be approved by the finance department. An Interest rate of 17% per annum will be charged on all late payments and overdue amounts. Should your account fall into arrears, all discounts and special arrangements if applicable, will be forfeited.
PROOF OF PAYMENT MUST BE SUPPLIED AND FAXED TO FENSTER
Cancellation of accepted quotes must be received in writing. The following cancellation charges will apply:
9.1. Cancellation in writing 1 month prior to completion of a job = 75% of the total quotation price plus any variations and extras thereon will be charged to the client;
9.2. Cancellation in writing 48 (forty – eight) hours or less prior to completion of a job = 100% of the total quotation price plus any variations and extras thereon will be charged to the client and is payable with 7 days of cancellation;
9.3. Any and all expenses incurred prior to the cancellation of the event will be for the account of the client who will be liable for settling same;
9.4. In the event of cancellation, any deposits paid by Fenster to any of its suppliers or affiliates on the request of the client may be forfeited as per the discretion of the relevant payee.
10. CREATIVE PROPERTY
All designs and concepts have been developed by Fenster and are considered to be of a proprietary nature. These ideas and concepts remain the property of Fenster. Should you wish to utilize any of the concepts and ideas in this quotation without retaining the services of Fenster, a creative consultancy fee will be charged, the amount of which will be advised by Fenster. Please have regard to the signed Non-Disclosure Agreement attached hereto. In the event that the client has not signed same, then same must be signed before any services or goods can be provided by Fenster.
It is the client’s responsibility to ensure that either they or their representative is present at the time and date of delivery, which will be advised to the client a minimum of 2 hours before delivery. Please refer to the “client undertaking” attached hereto in this regard.
Further please note that Fenster will not be held responsible for ensuring that the Client has arranged a representative for acceptance of the delivery. The onus is on the client to ensure that the correct party signs for acceptance of the goods.
The quotation to which this agreement is attached has been done in accordance with the specification provided to Fenster by the client and the relevant window schedule provided. The drawings shown on the quotation are for illustrative purposes only and are not to be considered as specification or installation diagrams.
In the event of any additions requested by client over and above the quoted items prior to completion of the manufacture will result in the original quote being amended accordingly.
In the event of any additions requested by client over and above the quoted items after completion of the manufacture will result in the client being charged therefor separately and form part of a new quotation.
The quotation is based on standard RAL colours and accordingly any additional or special colours must be requested in writing by the client and will be charged for at an additional rate.
In the event that the client requires glazing different to that of the standard glazing as per Fenster’s spec sheet which the client has had regard of and understands, the price of such variance will be added to the original quote and for which the client will be liable.
For purposes of installation, this quotation does not include the costs of the use of scaffoldings or cranes or any other equipment required for installation and in the event that same is required, same will be charged for at an additional cost.
The payment of such cost will be subject to the quote and costing of the supplier of such equipment plus an additional 15% administration fee of their total quotation, which will be due to Fenster. The total cost of the above will be payable upfront by the client.
It is the sole responsibility of the client to insure any items bought from Fenster is insured upon delivery of the goods to client against any losses. Fenster does not accept any liability for any damage to property or goods of the client subsequent to delivery of the goods.
14. WAIVER OF LIABILITY
Fenster accepts no liability whatsoever for any loss, damage, accident, delay or inconvenience caused by the client at a job and in the event of any loss, damage, accident, delay or inconvenience caused by the client, the client accepts to be fully liable from such damage and exonerates and frees Fenster from any liability whatsoever.
All risk of loss for any and all products will pass automatically to the client upon installation of the job.
Fenster undertakes to install the products as per the specifications, instructions and information provided by the client. Fenster accepts no liability whatsoever for any loss, damage, accident, delay or inconvenience caused by the client providing the incorrect or inaccurate specifications, instructions and information.
WAIVER IN RESPECT OF RENOVATION WORK:
Fenster undertakes to exclusively install windows and doors. Fenster accepts no liability whatsoever for any loss, damage, accident, delay or inconvenience caused to the client or his/her property for any plastering or touch up work. Fenster will not perform this work and such work will be for the responsibility of the client.
15. BREACH AND TERMINATION
15.1. In the event that the Client commits a breach of any of the terms and conditions hereof and remains in default for a period of seven days after receipt by the Client of written notice (“notice of breach”) from Fenster calling for such breach to be remedied, Fenster shall be entitled, without prejudice to any other rights it may have hereunder or in law, to:
15.1.1. Claim specific performance; or
15.1.2. Terminate this Agreement.
15.2. Without prejudice to the provisions of Clause 15.1 above, Fenster may forthwith terminate this Agreement at any time by giving the Client written notice of such termination if:
15.2.1. A final and unappeasable judgment against the Client remains unsatisfied for a period of 14 (fourteen) days or more after it comes, or ought reasonably to have come, to the attention of the Client;
15.2.2. The Client commits any act of insolvency as set forth in Section 8 of the Insolvency Act 24 of 1936, as amended;
15.2.3. The Client makes any arrangement or composition with its creditors generally or ceases or threatens to cease trading;
15.2.4. The Client is, other than for the purposes or reconstruction or amalgamation, placed under voluntary or compulsory liquidation or under judicial management or under the equivalent of the foregoing;
15.2.5. The Client or any of its directors is convicted of a criminal offence, which in Fenster’s opinion would impact negatively upon Fenster;
15.3. Any termination pursuant to the preceding provisions of this clause shall be without prejudice to any claim Fenster may have against the Client in respect of any prior breach of the terms and conditions of this Agreement by the Client.
16. DISPUTE RESOLUTION AND APPLICABLE LAW
The Parties accept that disputes and differences may arise between them during the course of this Agreement.
16.1. In the event of any dispute arising between the Parties as a result of this Agreement, including the validity, implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, the parties shall forthwith meet to attempt to settle such dispute, and failing such settlement within a period of 10 (ten) days, the said dispute shall on written demand by any party to the dispute be submitted to arbitration in Johannesburg in accordance with the rules of AFSA (Arbitration foundation of South Africa).
16.2. Should the parties fail to agree in writing on an arbitrator within 10 (ten) days after arbitration has been demanded, the arbitrator shall be nominated at the request of either party by AFSA.
16.3. Any party may appeal the decision of the arbitrator in terms of the rules of AFSA.
16.4. Nothing herein contained shall be deemed to prevent or prohibit a party to the dispute from applying to the appropriate court for urgent relief or for judgement in relation to a liquidated claim.
16.5. Any dispute resolution process under this Clause 14 shall be conducted in camera and the Parties shall treat as confidential and not disclose to any third party, details of the dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of the arbitration, without the written consent of all the parties.
16.6. The provisions of this clause will continue to be binding on the Parties notwithstanding any termination or cancellation of this Agreement.
16.7. This Agreement shall in all respects be governed by and interpreted in terms of the laws of the Republic of South Africa.
16.8. Subject to Clause 14 and to any other provisions of this Agreement, the Parties hereto hereby consent and submit to the non-exclusive jurisdiction of the South Gauteng High court, Johannesburg, Republic of South Africa in any dispute arising from or in connection with this Agreement.
16.9. The Parties agree that any costs awarded will be recoverable in accordance with the High Court tariff, determined on an attorney-and-own-client scale.
16.10. Notwithstanding the provision of Clause 14, Fenster shall be entitled to institute any action or other proceedings arising from this Agreement in any other court having jurisdiction over the Parties.
17. FORCE MAJEURE
If a Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of any matter or occurrence which in terms of the common law constitutes vis major or casus fortuitous, the Party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages whether general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party.
Any Party invoking force majeure shall upon termination of such event giving rise thereto forthwith give written notice thereof to the other Party. Should such force majeure continue for a period of more than 30 (thirty) days then either Party shall be entitled forthwith to cancel this Agreement in respect of any obligations still to be performed hereunder.
18. SET OFF
In the event of Fenster becoming indebted to the Purchaser, Fenster may set off such indebtedness against any monies, which may be or become owing by the Purchaser to Fenster. The Purchaser has no right of set off against Fenster.
The conditions of sale and any contract arising out of it are governed by the laws of the Republic of South Africa. The Seller cannot be held responsible for goods ordered telephonically otherwise are not confirmed by an official order.
All illustrations, descriptive matter, drawings, catalogues, advertisements, pamphlets and the like accompanying any quotations or in the Purchaser’s hands before or after the Purchaser places an order, are supplied in good faith for general information only and do not form part of the contract.
Notwithstanding any waiver, indulgence or relaxation express or implied granted by us to the Buyer, all these conditions shall remain in force unless and until abrogated by us in writing, and any obligation of the Buyer hereunder shall in any case remain in full force and effect.
19. AUTHORITY AND ACCEPTANCE
The parties whose signatures are affixed below agree to accept the terms and conditions stated with this agreement and warrant that the undersigned person(s) is/are the authorised and appointed agents.
Ownership of all products supplied by Fenster to the client shall remain the property of Fenster up until such time that the Client has paid Fenster in full.
Fenster reserves the right to revise the above terms and conditions without prior notice.