The Wie’s Jou Pappa Pty LTD Standard Terms and Conditions (“Terms & Conditions”) shall govern all transactions between Wie’s Jou Pappa Pty LTD (“WJP”) and all Wie’s Jou Pappa Pty LTD customers (“Customer”) for all WJP services and products.
Customer expressly acknowledges and agrees that the Standard Terms & Conditions supersede over any pre-printed terms and conditions on any Customer purchase order or other sales document and are incorporated by reference and deemed an integral part of any Quotation, Order Confirmation or other agreement for Services. Any request and/or receipt of WJP Services includes Customer’s agreement to be bound by these Terms & Conditions. Any variation or modification to these Terms & Conditions must be in writing.
Services and Prices. The price and payment terms for all WJP products and/or services (“Services”) are as set forth in the Quote/Order Confirmation.
Quotations and Specifications. Upon receipt of specifications from Customer, WJP shall indicate its ability and agreement to undertake to provide Services through issuance of a Quotation. It is the Customer’s responsibility to confirm that all specifications indicated in a Quotation are complete and accurate in all respects. In the event that any specification is found to be incomplete or inaccurate, WJP reserves the right to stop work until such time as appropriate and agreeable changes to a Quotation or Order Confirmation are finalized.
The Quotation and Order Confirmation contains the complete and exclusive definition and description of the Services to be provided, price and payment terms.
Upon issuance of a Quotation, Customer shall notify WJP of its approval and acceptance of the Quotation in writing. No agreement to provide Services is complete until WJP has issued an Order Confirmation confirming WJP’s acceptance of the approved Quotation.
Changes. Customer shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and method of delivery. If any such change causes an increase in the cost of an item or time required for the Services, an equitable adjustment shall be made to the Quotation/Order Confirmation in writing.
Cancellation. Customer may cancel any Service under a Quotation or Order Confirmation without a cancellation fee or other liability at any time prior to any work or issuance of an Order Confirmation by providing WJP with written notice of such cancellation by email, facsimile or by mail. Costs and/or fees for Services where work has begun will be prorated based on the amount of work performed and the costs incurred to the time of cancellation.
Compatibility and Intellectual Property. Customer shall ensure that all file formats delivered as part of the Services are compatible with Customer’s software and systems. All intellectual property rights in any Original and the specification shall remain the property of and vested in Customer. All intellectual property rights to any Services shall be vested in and be the exclusive property of WJP with Customer retaining a non-exclusive, perpetual, non-assignable license to the Services, unless otherwise specifically stated in a Quotation or Order Confirmation.
Copyright. WJP warrants that the Services and all rights thereto are owned by WJP and shall not violate any copyright, patent, trademark, trade secret or any other proprietary right of any third party. WJP represents and warrants that it has and will convey to Customer good title to the Services, free and clear of all liens and encumbrances and that the Services are in compliance with all federal, state and local laws, rules and regulations.
Customer’s request for Services and delivery of an Original to WJP for scanning, copying and/or reproducing indicates Customer’s representation and warranty that Customer has the full legal right to scan, copy, reproduce and possess the Original. Where possible WJP will warn the Customer as to the potential infringement of copyright, alterations to the design will be proposed.
Indemnification. Customer agrees to indemnify, defend and hold harmless WJP, its directors, officers, employees and agents, from and against all liability, including a claim of intellectual property infringement based on copyright, trademark, patent and/or trade secret arising out of delivery of an Original to WJP and/or a request for Services of scanning, copying or reproducing the likeness of any Original.
Warranties. WJP warrants that all Services i) shall be performed with commercially reasonable skill and care, and ii) the accuracy of all data supplied through the Services shall be within the tolerances specified in the Quotation. WJP shall not be liable in contract, tort or otherwise for any modification to the Services made by Customer or any inaccuracy in any Service, including, without limitation, any scanning data, or inaccurate specification approved by Customer or contamination of an Original. Any Services not in compliance with a Quotation or Order Confirmation shall, at WJP’s option, be re-performed or any fees refunded. WJP specifically disclaims any and all warranties, including any implied warranty of fitness for a particular purpose or merchantability, except as specifically set forth in a Quotation or Order Confirmation.
Limitation of Liability. Except as otherwise expressly stated herein, all conditions, warranties and representations, expressed or implied, by statute or otherwise, in relation to the performance or non-performance of any Services are hereby excluded to the full extent permitted by law.
Unless otherwise agreed in writing, all drawings, illustrations, descriptions, specifications, technical data, advertising and other similar information issued by WJP or contained in any WJP literature, website or other publication is published solely as a means of approximating WJP’s Services and shall not form a part of any Quotation or Order Confirmation unless specifically stated therein.
WJP shall bear no liability, in contract or tort (including negligence or other breach of statutory duty) for any misrepresentation or for any loss or damage, direct or indirect, foreseen, known or advised in advance, including but not limited to loss or damage incurred by Customer as a result of third party claims, loss of actual or anticipated profits, loss of business opportunity, loss of anticipated benefits, loss of goodwill, any indirect, special or consequential loss or damage howsoever caused. WJP’s total liability under or in connection with the performance or non-performance of any Services whether for negligence, breach of contract, negligent or intentional misrepresentation or otherwise, is limited, in respect of each event or series of connected events, to the amount actually paid under any Quotation or Order Confirmation.
WJP SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) RESULTING FROM ITS PERFORMANCE OR ANY FAILURE TO PERFORM HEREUNDER INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR OPPORTUNITIES, EVEN IF WJP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any claimed breach on the part of WJP must be commenced within one year of the date the cause of action has accrued.
Performance and Delivery. Unless otherwise agreed by WJP, all Services shall be performed at WJP’s discretion. Customer shall deliver all required and necessary original items (“Original”) to be scanned to complete the Services to WJP’s place of business within a reasonable time and not later than otherwise indicated by WJP. All such required and necessary Originals shall be delivered free from dust, dirt, oil, grease or any other contaminant.
WJP agrees to exercise all commercially reasonable efforts to perform the Services by the date specified in the Quotation or Order Confirmation. All deadlines indicated are estimates only and WJP shall bear no liability for any delay in delivering the Services. Customer shall be notified of completion of Services by email or telephone upon completion. Unless otherwise agreed in writing, Customer shall arrange for retrieval of all required or necessary Originals within five (5) business days of notification of completion of Services. WJP reserves the right to charge a reasonable daily storage fee for any Original not retrieved by Customer within seven (7) days of notification. Originals not retrieved after thirty (30) days may be disposed of at WJP’s discretion.
Unless otherwise agreed in writing WJP shall not be liable for any loss or damage to any Original.
All Services shall be delivered to Customer electronically by email, through Wie’s Jou Pappa Pty LTD’ web based software, or other file transfer protocol, at Wie’s Jou Pappa Pty LTD’ sole discretion, unless otherwise indicated in Customer’s specifications. Upon Customer’s advance request, flash drives or other media is available. Cost of media and related tax shall be billed accordingly to Customer’s account.
Payment. Full payments for all Services are due at or before the time of delivery. Upon issuance of an Order Confirmation and before start of work, Customer shall pay a deposit of 50% of the total Quotation amount. Upon completion of the Services, WJP shall prepare and deliver a limited sample version of all files to Customer for inspection. Upon final payment of any balance due, the fully accessible file shall be delivered to Customer. Any other payment terms and conditions must be specifically agreed to in writing in advance.
Termination. WJP may suspend performance of any Service and/or terminate any Quotation or Order Confirmation forthwith by giving notice to Customer based on i) Customer’s breach of any obligation under these Terms & Conditions, any Quotation or Order Confirmation; ii) Customer’s voluntary or involuntary application for bankruptcy or any assignment on behalf of a creditor; iii) Customer’s notice of winding up or dissolution; iv) Customer’s ceasing or suspending business or payment of any of debts or failure to pay any debts as they become due. Upon such notice of termination, all amounts due and payable to WJP shall become immediately due and payable and WJP shall have no further obligation to perform any Services.
Non-Solicitation; No Hiring. Customer shall not solicit or hire, on behalf of itself or any third party any WJP employee, independent contractor, or agent without the specific approval of WJP, in writing in advance. Customer hereby agrees that in the event any WJP employee, independent contractor or agent is hired or employed by Customer, directly or indirectly, WJP shall act as agent to the transaction and be entitled to 30% of the employee’s, independent contractor’s or agent’s annual salary.
Confidential Information. All Quotations, Order Confirmations, Services, estimates, budgets, proprietary software are the exclusive and confidential property and trade secrets of Wie’s Jou Pappa Pty LTD (“Confidential Information”) and Customer shall maintain the confidentiality of all such Confidential Information from third parties, except as used in procurement of the Services.
Relationship of the Parties. The relationship of WJP and Customer shall be that of independent contractor and no employment, partnership or joint venture relationship is intended or implied, except as otherwise set forth in a separate written agreement.
Force Majeure. Neither Customer nor WJP shall bear any liability be deemed to be in breach of contract by reason of any delay in performing, or failure to perform, any obligations under a Quotation, Order Confirmation if such delay or failure was beyond that party’s reasonable control (including, without limitation, any strike, lockout or other industrial action, act of God, flood, war or threat of war, accidental or malicious damage, or prohibition or restriction by any government or other legal authority).
If Customer or WJP claim unable to perform any obligation under a Quotation or Order Confirmation, for any reason set forth herein, that party shall immediately notify the other party of the nature and extent of the circumstances in question.
This condition shall cease to apply when any such circumstances have ceased to have effect on the performance of the Services. If any circumstance described herein continues for more than three (3) months, the other party shall be entitled to terminate the Quotation or Order Confirmation upon one (1) month’s written notice.
Governing Law and Jurisdiction. South African law shall apply in all instances to any dispute arising out of any Quotation, Order Confirmation, Service or Terms & Conditions, without consideration to any conflicts of law analysis, with exclusive jurisdiction in South Africa.