Agreement
Entered into by and between:
Hassle Free Kids Party (Pty) Ltd,
Hereinafter “the company”
of Address
Suite 7 Denavo House
15 York Street
Kensington B, Randburg
2194
(Domcillium Citandi et Executandi)
And
The Customer
Hereinafter “The Customer”
of Address:
As Stipulated in the signed quotation
(Domicillium Citandi et Executandi)
RECORDAL:
The Company hires out various items which include, but is not limited to, Children’s’ Chairs, Tables, Table Cloths, Chair Covers, Tie-backs, Crockery and Cutlery, Gazebo’s, Table Center Pieces, Jumping Castles, Water Slides, Merry-go-rounds, Carrousel’s, Popcorn Machines, Candy-floss Machines, Balloons (incl. helium balloons), items of a decorative nature and other fun / entertainment items and their accessories.
The Customer wishes to engage with The Company and to hire The Equipment set out in the quotation subject to the following terms:
1. INTERPRETATION:
Clause headings in this Agreement are for convenience purposes only and shall not be used in its interpretation.
In this Agreement, unless the context clearly indicates a contrary intention reference to:-
1.1 The singular shall include the plural and vice versa;
1.2 Any one gender shall include a reference to the other two genders;
1.3 Natural persons shall include a reference to juristic persons, corporate and unincorporated.
1.4 The following words and expressions shall, bear the following meanings assigned to each of them respectively;
1.5 “The Equipment” –Includes, but is not limited to, Adult and Children’s’ Chairs, Tables, Table Cloths, Chair Covers, Tie-backs, Crockery and Cutlery, Gazebo’s, Table Center Pieces, Jumping Castles, Water Slides, Merry-go-rounds, Carrousel’s, Popcorn Machines, Candy-floss Machines, Balloons (incl. helium balloons) and other fun / entertainment items and their accessories.
1.6 “Documentation” – The user guides and manuals for the installation and use of The Equipment.
1.7 “Quotation” – The quotation accepted by the customer in which the equipment hired shall be described and the date/s on which same is to be delivered and used is set out;
1.8 “Party Packs” – The provision by the company of consumable items normally associated with children’s parties;
1.9 If any provision in the aforesaid definitions is or contains a substantive provision imposing rights and/or obligations on a party/ies, effect shall be given to such provision as if it were a substantive provision in the body of this Agreement;
1.10 Unless the context clearly indicates a contrary intention, when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day other than a business day, in which case the last day shall be the next succeeding day which is not a business day;
1.11 The term “business day” shall mean any day other than a Saturday, Sunday or public holiday as published by the Government of South Africa from time to time;
1.12 Any reference to any statute shall be a reference to that statute as at the signature date, and as amended or re-enacted from time to time.
1.13 Any word or phrase defined in the body of this Agreement as opposed to in 1.1 shall have the meaning assigned to it in such definition throughout this Agreement.
1.14 The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s;
1.15 The terms of this Agreement having been negotiated, the contra proferentem rule shall not be applied in the interpretation thereof.
2. EQUIPMENT HIRE
2.1 By accepting the quotation, customer agrees and is hereby bound to all the terms and conditions of this agreement.
2.2 The customers signature on the delivery note shall constitute an acknowledgment of receipt of the equipment hired in good order and condition.
2.3 The customer undertakes to return the equipment hired after the period for which same is to be used in good order and condition, fair wear and tear alone excepted.
2.4 The customer acknowledges that:
2.4.1 Upon signature of the delivery note referred to above that it has received the documentation and will abide by the user guides and manuals in the use of such equipment.
2.4.2 The safety guidelines in the use of such equipment have been brought to the attention of the customer.
2.4.3 That failure to comply with the safety guidelines may expose persons using the equipment to risk of injury and/or damage.
2.4.4 Use of the equipment shall at all times be under parental supervision and guidance.
2.4.5 The customer indemnifies the company against all and any claims from whatsoever source and of whatsoever nature arising from the use/misuse of the equipment by the customer and/or the customer agents, servants and invitees.
2.4.6 Should the customer fail to report to the company any defect in the equipment and/or the erection/commissioning thereof, prior to the use thereof by the customer, by the company’s agents then and in that event the customer shall be deemed to have acknowledged that the equipment is acceptable to the customer and the erection/commissioning thereof has been done in a satisfactory manner.
2.4.7 The company does not and shall not provide adult/parental supervision and guidance of the use of the equipment and/or the use of the party packs.
3. PROVISION OF PARTY PACKS
The customer acknowledges that the provision of party packs by the company to the customer entails the necessary parental/adult supervision in the use thereof by minor/children.
4. PAYMENT:
4.1 Your booking will only be confirmed on receipt of your payment, in full, to The Company’s nominated banking account.
Payment will only be deemed to have been received once it reflects as cleared on The Company’s banking account. Please effect EFT payments to:
Recipient: Hassle Free Kids Party (Pty) Ltd
Bank: FNB
Branch: Fourways View
Branch Code: 251 655
Account no.: 62408048694
Account Type: Cheque
4.2 We reserve the right to refuse delivery should payment not be made or should circumstances prevail which are beyond The Company’s control (Force Majeure).
5. CANCELLATIONS:
5.1 In the event that The Customer cancels any booking, refunds shall be made strictly in accordance with the formula below:
5.2 If cancelled a minimum of 14 (fourteen) days prior to the date on which the equipment has been agreed to be used:-
5.2.1 In full, subject to the deduction of any bona-fide expenses already incurred by The Company which may include but is not limited to:
a. Payments / Deposits made to third-party contractors.
5.3 If cancelled less than 14 (fourteen) days prior to the booking date:
5.3.1 No refund shall be given, The Customer acknowledging that the amount paid shall be a reasonable pre-estimate of damages.
6. DISCLAIMER:
6.1 Should the customer fail to report to the company any defect in the equipment and/or in the erection/commissioning thereof prior to the use thereof the customer indemnifies the company against any and all claims of whatsoever nature and from whatsoever cause arising in the use thereof.
6.2 Should the customer make a report to the company as is envisaged in 6.1 above then and in that event the customer shall ensure that no person shall use the defective equipment until such time as the company has addressed the concerns raised in the customers report and the customer has in writing acknowledged such fact.
7. LIMITATION OF LIABILITY:
7.1 The Company’s total, cumulative liability to The Customer at all times shall be limited to the Fees paid for the hire of The Equipment regardless of the nature of the liability or the nature or number of claims giving rise to the liability. The Company will not under any circumstance, be liable to The Customer for any loss/damage in excess of the fees paid for the hire of the equipment.
8. JURISDICTION:
The customer and the company hereby consent to the jurisdiction of the Magistrate’s Court in terms of Section 45 of the Magistrate’s Court Act 32 of 1944 for all/any disputes arising out of this agreement.
9. BREACH
9.1 In the event of either party breaching any term in this agreement and fails to remedy such breach within 7 (seven) days after receiving written notice from the innocent party requesting the defaulting to remedy such breach, then and in that event the innocent party may:
9.1.1 Insist upon specific performance; and/or
9.1.2 Cancel this agreement.
In either event but subject to the limitation of liability referred to above, the innocent party may claim such damages as they are able to prove in law.
10. GENERAL:
10.1 Whole Agreement – This agreement constitutes the entire agreement between the parties and no representation by either of the parties or their agents, whether made prior or subsequent to the acceptance of this agreement, shall be binding on either of the parties unless in writing and signed by all the parties hereto.
11. NON WAIVER:
11.1 This agreement constitutes the whole agreement between the parties relating to the subject matter hereof.
11.2 No amendment or consensual cancellation of this agreement or any provision or term thereof or of any agreement or other document issued or executed pursuant to or in terms of this agreement and no settlement of any disputes arising under this agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this agreement or of any agreement or other document issued pursuant to or in terms of this agreement shall be binding unless recorded in a written document signed by the parties. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
11.3 No extension of time or waiver or relaxation of any of the provisions or terms of this agreement or any agreement or other document issued or executed pursuant to or in terms of this agreement, shall operate as an estoppel against either party in respect of its rights under this agreement, nor shall it operate so as to preclude such party thereafter from exercising its rights strictly in accordance with this agreement.
12. DOMICILLIUM CITANDI ET EXECUTANDI:
12.1 The parties choose domicilium citandi et executandi for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purpose arising from this agreement, as recorded on in this agreement and the Customer signed acceptance of The Company’s quotation.
12.2 Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address within the Republic of South Africa which is not a post office box or post restante.
12.3 Any notice given and any payment made by any party to another (“the addressee”) which:-
12.3.1 Is delivered by hand during normal business hours on a business day at the addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery.
13. LEGAL PROCEEDINGS:
13.1 Should either party take legal proceedings against the other arising from this agreement or the cancellation thereof, the successful party shall be entitled to recover costs calculated on the attorney and client scale from the other party.
