MASSIMO BASTIOTTO T/A BLACK MAVERICK - STANDARD TERMS AND CONDITIONS
By ordering, purchasing, or receiving any products, good or services from Black Maverick, you irrevocably and immediately agree and bind yourself to the terms and conditions of sale and service as disclosed hereunder:
1. Definitions In these “Standard Terms and Conditions”, including the annexes to these Standard Terms and Conditions, unless a contrary intention clearly appears the following terms shall have the meanings assigned to them in this clause and cognate expressions shall have corresponding meanings –
1.1. “Business Day” - any day in the Republic of South Africa other than a Saturday, Sunday or public holiday;
1.2. “CPA” - the Consumer Protection Act No. 68 of 2008 and any associated regulations;
1.3. “Credit Event” – is, in relation to the Purchaser, when:
1.3.1. an order or declaration is made for the administration, custodianship, bankruptcy, liquidation, sequestration, winding-up, dissolution or placing under supervision for business rescue proceedings (and whether provisional or final);
1.3.2. it is unable (or admits inability) to pay its debts generally as they fall due or is otherwise insolvent;
1.3.3. any act is committed which, if such act was committed by an individual, would be an act of insolvency within the meaning of section 8 of the Insolvency Act No 24 of 1936 or any equivalent legislation in any jurisdiction to which such person is subject;
1.3.4. it ceases to carry on business contemplated in its constitutional documents;
1.3.5. it fails to satisfy any judgment awarded against it within 5 (five) business days –
1.3.6. it fails to pay the Seller any amount owing to it;
1.4. “goods/products” – used interchangeably, and can refer to any equipment, electronics, furniture, props, parts, products or other item sold or delivered by the Seller and which relates to entertainment and media production;
1.5. “Purchaser” - any person who order, purchases, hires, or appoints the Seller to deliver goods, services or products;
1.6. “Seller” – Massimo Bastiotto trading as Black Maverick
1.7. “services” are the design, delivery, execution, advisory and consulting services offered by the Seller, and which relate to entertainment and media production.
2. In these “Standard Terms and Conditions”, where any provision is qualified by the words “to the extent permitted by law” the Seller and the Purchaser agree that such provision shall only apply to the extent that the laws of the Republic of South Africa allow same to apply, on the basis that if the Seller is precluded from applying –
2.1. any such provision then the terms of such provision which the Seller is precluded from applying shall not apply; or
2.2. the full terms of any provision, then such provision shall not apply and shall be severed from these Standard Terms and Conditions, and the remaining provisions hereof shall be of full force and effect.
3. The Purchaser does hereby accept to be bound by the terms and conditions set out herein.
4. Quotations are valid for a period of 30 (thirty) days from date of issue.
14. Signature by the Purchaser, or by any representative of the Purchaser, to the Seller's delivery note shall be regarded as acceptance by the Purchaser that the goods reflected in such delivery note have been properly and completely delivered. Goods that are posted or are to be transported by a carrier according to the Purchaser's instructions shall be deemed to have been delivered to the Purchaser on receipt of the goods by the Post Office or Carrier, as the case may be.
15. Risk in and to the goods shall pass to the Purchaser on delivery.
16. Notwithstanding the delivery of any goods to the Purchaser and the associated passing of risk in and to the goods, ownership thereof shall not pass until the Seller has received payment of the full purchase price. The Seller shall at its own discretion be entitled to demand the return of possession of any of the goods which have not been paid for and in respect of which payment is overdue, and apply for the necessary relief. This clause 16 shall only be applicable where the parties have agreed that the Purchaser is to acquire ownership in the goods.
17 The Purchaser shall not permit or allow the goods or any portion thereof to become subject to any landlord’s lien or hypothec until the price payable therefor has been settled in full, on the basis that the Purchaser shall be obliged to inform the landlord of the premises at which the goods are stored from time to time (to the extent that such premises are not owned by the Purchaser), in writing, of the Seller's ownership of the goods and to provide the Seller on request with an acknowledgement of receipt from the aforesaid landlord of such notification.
18. Where the Seller does not transport or install the goods, the Seller accepts no liability for goods damaged, lost in transit, or installed improperly.
19. To the extent permitted by law, the Purchaser shall have no claim for short or defective delivery unless the Purchaser has, within 5 (five) working days of receipt thereof, alerted the seller in writing and/or specified on the Seller's delivery note and/or invoice the details of the alleged short or defective delivery.
20. To the extent permitted by law, the Seller shall be exempted from and shall not be liable under any circumstances whatsoever for any direct or indirect loss or damages of any nature (including without limitation consequential damages) or any loss of profit which the Purchaser may suffer as a result of: a defect in the goods; the goods failure to perform to desired specifications; or arising out of the use of the goods.
21. To the extent permitted by law, the Seller shall have no liability in respect of any claim –
21.1. based on defective goods where such defect arose directly or indirectly as a result of the Purchaser failing to comply with generally accepted operation, maintenance, repair, or storage conditions applicable for such product and/or the Seller's specific instructions in relation thereto, or where such defect is directly attributable to the negligence of the Purchaser;
21.2. in respect of any defect in any perishable goods unless the Purchaser inspects such goods at the time of delivery thereof to the Purchaser and notifies the Seller in writing of any such defects forthwith immediately (or the day of) delivery;
21.3. in respect of any goods (other than perishable goods) unless the Purchaser notifies the Seller thereof, in writing, within five (5) working days after delivery thereof to the Seller;
21.4. where the Seller has been requested to arrange the services of a third party at the request of the Purchaser, or the delivery of goods or products sold by a third party at the request of a Purchaser, or the use of a third party’s premises at the request of a Purchaser, and said third party fails to perform as required or otherwise delivers defective goods or services. It is recorded that the Seller, acting in an intermediary capacity, accepts no liability on behalf of any third party, and the Purchaser shall be obliged to conclude the necessary contractual arrangements directly with said third party.
22. Any intellectual property, including but not limited to registered or potentially registrable rights to any patent, design, trademark or copyright, created by the Seller in the performance and rendering of
33. Unless the context otherwise requires, the words importing the singular shall include the plural and vice versa, a natural person shall include an artificial person and vice versa and the one gender shall include the other gender and vice versa.
34. The Purchaser shall not, under any circumstances, be entitled to withhold or set-off payments to the Seller.
35. Where the Seller renders services to the Purchaser, including consulting, advising, labour, deliver, set-up, maintenance, repair, and interim operation of products, and Seller’s obligations shall be limited as follows:
35.1. the Seller will charge for the services on the basis it deems appropriate and reserves the right to charge increased rates for labour and services where such is required urgently or outside of normal working hours (09:00-17:00, Monday to Friday excluding public holidays).
35.2. the Seller will attend to services and call-out to the Purchaser’s premises when possible but will not be obligated to do so.
35.3. the Seller shall only perform its service at the date and time of its own discretion.
36. The Seller may require payment of a reasonable deposit for any products in advance; and the Seller may impose a reasonable cancellation charge (which may be the entirety of the deposit) in the event of the Purchaser cancelling the order. The Purchaser acknowledges that the deposit and cancellation charge levied by the Seller is reasonable and fair in the circumstances.
37. If the products ordered by the Purchaser are special order goods as defined in the CPA, the Purchaser shall not enjoy the rights afforded by Section 17 of the CPA, which include the cancelling of any advance order or booking.
38. The Purchaser may not return products to the Seller without the Seller’s express prior written consent, which consent will specify the terms of the return. 5. The Seller does not supply, as part of the goods or services, any item, service, goods or product not specifically recorded in the original quotation by the Seller.
6. These Standard Terms and Conditions shall apply to all contracts of sale of goods and/or supply of services by the Seller to the Purchaser and no terms or conditions appearing in any of the Purchaser's documents, including the Purchaser's buying order, which are inconsistent with these conditions shall be binding on the Seller unless specifically agreed to in writing by the Seller.
7. The Purchaser, and specifically the signatory of the Purchaser, warrants, that they are duly authorised to sign these this document and enter into any transaction with the Seller and any such transaction shall be deemed to be valid and enforceable.
8. Unless otherwise agreed in writing by the Seller, any deposit which is payable on signed acceptance of the quotation, after which the balance payment of the full purchase price of the goods and services shall be made by the Purchaser to the Seller immediately upon delivery of the goods or services, without deduction or demand and free of all bank and exchange charges, set off and any other deduction of any nature whatsoever.
9. Any prices quoted or invoices by the Seller to the Purchaser are exclusive of Value Added Tax unless otherwise recorded in writing.
10. In the event of any of any fraudulent activities which are perpetrated whereby a change of banking details is advised on the Seller's letterhead or by other means, the Purchaser agrees that any payment made to any other bank account shall not constitute a valid discharge of the Purchaser's obligation to make such payment. The Purchaser shall be obliged to notify the Seller of any receipt by it of a notification of change of banking details and shall only give effect thereto if same is confirmed telephonically and in writing by a Director of the Seller. All losses suffered as a result of any amounts being paid by the Purchaser into any bank account other than the account of the Seller shall be borne solely by the Purchaser.
11. Should the Purchaser become subject to a Credit Event the whole balance outstanding by the Purchaser to the Seller will immediately become due and payable, irrespective of any prior agreements to the contrary. Notwithstanding anything contained herein, in the event of the Seller granting credit terms to the Purchaser, the Seller reserves the right to withdraw such credit terms at its sole discretion if it reasonably believes that the Purchaser's financial position has deteriorated after the date that the credit terms were granted.
12. Should the Purchaser not make payment within 30 days of the due date for payment for any goods purchased or services provided then the Purchaser shall be obliged to pay the Seller interest thereon at the Prime Rate plus 2% (two percent) per annum calculated from the due date until payment (both dates inclusive) which interest shall be calculated daily and compounded monthly in arrears on the last day of each month. The “Prime Rate” shall mean the rate publicly quoted by the South African Reserve Bank, as at the signature date of the Standard Terms and Conditions, as being its prime rate (expressed as a nominal annual compounded monthly in arrear rate), calculated on a 365 (three hundred and sixty five) day a year factor, irrespective as to whether or not the year is a leap year.
13. To the extent permitted by law, the Seller’s liability in respect of the non-delivery or late delivery of any goods ordered by the Purchaser, and Purchaser’s damages, costs or losses shall be limited to a refund of any amounts paid in respect of the goods, services, or the delivery or creation of goods or products, shall be the sole and exclusive property of the Seller.
23. It is recorded that the Seller may charge for its services in the design and formulation of production sets, locations, and designs at a rate of R800.00 (eight hundred rand only) per hour. Any intellectual property created in the design process, irrespective of the Purchaser’s input and requirements, shall be the sole and exclusive property of the Seller.
24. If the Purchaser requests that Seller retain possession of any goods, irrespective of the passing of ownership to the Purchaser, the Seller shall have no liability in relation to damage to the goods while in the Seller’s possession, and the Seller shall be entitled to charge the Purchaser reasonable storage costs. This does not apply to the case of gross negligence or wilful misconduct.
25. The Seller does not warrant any products or goods will be fit for any purpose other than that specifically recorded in the original quotation.
26. In the event that the goods are specially ordered and designed for the Purchaser’s purposes, it is recorded that the Seller is not responsible for any defects originating from a failure to properly and fully specify the Purchaser’s requirements with respect to those goods. Furthermore, the Purchaser acknowledges that it shall be liable for any costs and the reasonable cancellation charges of the Seller which may be incurred prior to delivery of the goods and services, in the event of early or premature cancellation of an agreement.
27. To the extent permitted by law, the Purchaser hereby indemnifies the Seller against all claims of whatsoever nature which may be made against the Seller by any third party arising out of the use of the goods sold by the Seller to the Purchaser and/or the services provided by the Seller to the Purchaser, unless such claims arise out of gross negligence or wilful misconduct of the Seller.
28. In the event that the Seller has agreed to attend to any portion of the delivery or installation of the goods, the Purchaser must ensure that the site for such delivery is prepared and ready to receive the goods. Any delays which result from the Purchaser’s failure to ensure that the site is prepared will entitle the Seller to charge the Purchaser for the additional costs of labour, storage, or transportation as the case may be.
29. The Seller shall be entitled to bring any action or proceeding against the Purchaser in any competent court, and that all costs incurred in any action including costs on an attorney/client scale and attorney’s collection commission will be paid by the Purchaser. The Purchaser and the Seller agree that the laws of South Africa will govern any dispute between the parties.
30. The Purchaser hereby chooses as its domicilium citandi et executandi for all purposes arising out of these Standard Terms and Conditions the address selected by the Purchaser for the delivery of any goods and services by the Seller, alternatively the address expressly recorded and notifying the Seller in writing.
31. Any notice required to be given by either party to the other in terms of this agreement shall be in writing and shall either be delivered by hand or be forwarded by pre-paid registered post or by e-mail; and unless and until the contrary is proved, a notice:
31.1. sent by pre-paid registered post shall be deemed to have been received on the seventh calendar day after posting;
31.2. sent by e-mail shall be deemed to have been received on the business day on which it was sent;
31.3. delivered by hand will be deemed to have been received at the moment of delivery directly to the parties to this agreement.
32. Any notice actually received by a party shall be deemed adequate notice, irrespective of whether it was
delivered in terms of this agreement.
39 Should the Purchaser return products in accordance with this agreement, a restocking or devaluation charge may be levied by the Seller. In addition, the Purchaser will be liable for any costs incurred by the Seller in the transportation, storage, and installation of the goods both with respect to the original delivery and the return of the goods.
40. The Seller offers no warranties in relation to the goods other than specified in writing, in which case the aforementioned warranty be limited to the period so specified, provided the Purchaser, within 5 (five) days of a defect becoming apparent, notifies the Seller in writing. No warranty is applicable where the defect results from repairs conducted by the Purchaser, or abnormal use or operational conditions. Furthermore, the Seller provides no warranty whatsoever with respect to any electrical components or parts of the goods.
41. In the event of any dispute arising from this agreement or any delivery of goods or services by the Seller to the Purchaser, the parties agree to the authority and jurisdiction of the Association of Arbitrators. Either party shall have a right to refer a dispute to the Association of Arbitrators for resolution in terms of the Association of Arbitrator Rules, which referral will be binding on the other party.
42 Any condonation of any breach of any of the provisions hereof or other act or relaxation, indulgence or grace on the part of the Seller shall not in any way operate as or be deemed to be a waiver by the Seller of any rights hereunder or be construed as a novation thereof.
43 Each clause of these Standard Terms and Conditions is severable, the one from the other and if any one or more clauses are found to be invalid or unenforceable, that clause/clauses shall not affect the balance of these Standard Terms and Conditions, which shall remain of full force and effect.
44 This contract contains the entire agreement between the parties and any other terms thereof whether express or implied are excluded herefrom and any variations, cancellations or additions to this contract shall not be of any force or effect unless reduced to writing and signed by the parties or their duly authorised representatives.
QUOTATIONS ARE BASED ON ALL CLIENT REQUESTS UP TO AND INCLUDING THE DATE OF ISSUE OF THE QUOTATION. ANY REQUESTS MADE AFTER THE QUOTATION DATE WILL RESULT IN A REVISION OF THE COSTS AND CHARGED FOR ACCORDINGLY ON THE FINAL INVOICE OF THE RELEVANT JOB.
THE QUOTATION DOES NOT INCLUDE CREW OVERTIME. ANY OVERTIME INCURRED WILL BE CHARGED ON THE FINAL INVOICE OF THE PROJECT.
WHERE CREW IS REQUIRED, ONE (1) WORKING DAY IS CONSIDERED AS TEN (10) HOURS FROM THE APPLICABLE CALL TIME. ANY OVERTIME THEREAFTER WILL BE CHARGED AS FOLLOWS:
• FIRST FOUR (4) HOURS OVERTIME AT ONE AND HALF (1.5) TIMES THE CREW DAILY RATE STIPULATED, THEREAFTER AT DOUBLE TIME;
• PREMIUM DAYS SUCH AS SEVENTH DAYS, THE FIRST NIGHT OF A NIGHT SHOOT, SUNDAYS & PUBLIC HOLIDAYS SHALL BE CHARGED AT ONE AND HALF (1.5) TIMES THE CREW DAILY RATE STIPULATED; AND
• ALL OVERTIME INCURRED WILL BE CHARGED BASED ON THIS PREMIUM RATE.
OVERTIME WILL BE CHARGED IN QUARTER HOUR INCREMENTS I.E. WRAP CALLED AFTER THE QUARTER HOUR WILL BE ROUNDED UP AND WRAP CALLED UP TO THE QUARTER HOUR.
NB: QUOTATIONS DO NOT INCLUDE ANY ACCOMMODATION, PER DIEMS, MEAL ALLOWANCE FOR INSTALLATION & DERIG CREW. THESE ITEMS ARE TO BE DISCUSSED AND AGREED WITH PURCHASER UPON CONFIRMATION OF THE QUOTATION.
PAYMENT TERMS - STRICTLY C.O.D.