Sales Terms & Conditions
iHome Systems® Group of Companies. Version 4.0 2011.
General Terms and Conditions for Sale and Service of Projects (“Terms and Conditions”). Valid from January 2011.
These Terms and Conditions are used for all iHome Systems® projects. iHome Systems® hereafter refers to iHome Systems (Asia) Ltd., iHome Systems (Thailand) Co. Ltd., iHome Interactive (Thailand) Co. Ltd. , iHome Systems (Vietnam) Co. Ltd., iHome Systems (Singapore) Co. Ltd., Intelligent Home Systems (MY) Sdn. Bhd., and all their subsidiaries and affiliates.
1. BASIS FOR PROPOSAL
These Terms and Conditions pertains to and is applicable to the design, supply, delivery, installation and commissioning of the products, systems and services detailed in the attached Service Proposal. This Service Service Proposal excludes, in all cases, installation of boxes, 220V cable, conduit, trunking, paint work, wet work and any other works not detailed which usually pertain to main contractors or mechanical and electrical contractors.
2. SERVICE PROPOSAL VALIDITY
Unless indicated otherwise in writing, the Service Proposal is open for acceptance for thirty (30) days from date shown on the said document.
3. SERVICE PROPOSAL CONFIRMATION
The attached Service Proposal will come into force at such a time when all following conditions are met: 1. The Service Proposal is signed by the Buyer and by iHome Systems®, either through the Buyer returning to iHome Systems® the Service Proposal (including all documents and/ or Annexes submitted herewith) without any modification, or by iHome sending a written order acknowledgment with no reservation after receiving a confirmed Purchase Order (PO) from the Buyer; and 2. The guarantee and/or deposit is received by iHome Systems®; and 3. All the documents necessary for the execution of the Service Proposal are received by iHome Systems®.
In the case of suspension of the Services detailed in the Service Proposal by the Buyer, any reasonable charges and expenses incurred in connection therewith shall be born by the Buyer who shall reimburse iHome Systems® forthwith upon submission of the relevant invoices. Previously mentioned charges and expenses include, but are not limited to, handling, storage, insurance and labour costs incurred by iHome Systems® and its sub- suppliers or sub-contractors, financial costs such as extension of the validity periods of documentary credit, bank guarantees and insurance policies if any and more generally financial consequences resulting from the extension of time for completion, travel and living expenses of the personnel involved in the services, if any. Should suspension last for more than one hundred twenty (120) days, then iHome Systems® shall be entitled to terminate the Service Proposal and shall be indemnified as detailed in the section titled Termination below.
Suspension of Services by iHome Systems® shall not have any affect on and in no way pertains to the payment due or goods, products, and/or supplies owed by Buyer which Buyer agreed to purchase from iHome Systems®, as detailed in the Service Proposal. Product costs are due immediately and in full upon delivery to Buyer’s site, either at the address of the site or address provided to iHome or its subsidiaries or representatives.
In the event of termination of the Services detailed in the Service Proposal by the Buyer after it is confirmed in writing by iHome Systems®, for reasons not attributable to iHome Systems®, the Buyer will pay a cancellation charge of 100 % of the total Service Proposal value including, but not limited to, materials, goods, systems and services. Such materials, goods or services shall become the property of the Buyer upon such full payment being made by him/her. iHome may cancel its obligations pursuant to the Service Proposal without any liability if default is made by the Buyer in taking delivery of or in paying for goods under this or any other Service Proposal between the Buyer and iHome Systems®.
Should during the performance of the services detailed in the Service Proposal, iHome Systems® be directed by notice of the Buyer in writing to alter, amend or otherwise vary any part of the specifications, design or equipment, iHome Systems® shall submit an estimation of the effect of any such modification in the contractual price and/or in the delivery schedule. Such variation shall become effective upon receipt of a written change order to proceed duly signed by both Parties and receipt by iHome of the corresponding down payment, if any.
7. BUYER’S OBLIGATION
The Buyer agrees to obligate itself to the following as part of the overall contractual value of this Service Proposal: 1. To allow iHome a maximum timeframe of six (6) months from date of product delivery in order to complete installation of all technical, marketing and overall design information to achieve system designs detailed in the Service Proposal 2. To receive all licenses, permits, certificates, authorizations for any installation from local and/or national governments and/or governing bodies. 3. To nominate a single dedicated project manager to liaise between iHome and the Buyer. 4.To provide iHome unrestricted access to working areas at all times. 5. To supply services and resources to iHome including, but not limited to, electricity, water and cooling where needed during the installation period. 6. To complete all structural, mechanical and engineering works which are part of the Buyer’s scope of works. 7. To complete all mechanical structures and equipment which are part of the Buyer’s scope of work. 8. To allow iHome Systems®, its contractors or affiliates, to execute their work in a continuous and uninterrupted basis. 9. To purchase all insurance coverage for the project including, but not limited to, third-party liability insurance, workers accident insurance, damage insurance, professional liability insurance. 10. To comply with all requirements and Sections of these Terms and Conditions.
In the event of breach of any of the aforementioned obligations detailed in this paragraph by the Buyer, any reasonable charges and expenses, as detailed in the Suspension section above, incurred in connection therewith shall be born by the Buyer who shall reimburse iHome Systems® forthwith upon submission of the relevant invoices.
iHome Systems® reserves the right to correct all errors including, but not limited to, those caused by or resulting from omission, negligence, administrative oversight, typographical or clerical nature in the present document, attached proposals, presentations, and all document submittals.
Prices for all equipment, software and services detailed in the Service Proposal are for payment in the currency therein shown. This currency provision is based upon a conversion into Euros and is correct at time of issuance. iHome Systems® however reserves the right to modify proposed pricing based on currency fluctuations against the Euro.
10. TAXES AND DUTIES
All prices are quoted delivered on site except where otherwise stated and include current taxes (excluding Value Added Tax or Government Tax) and duties correct at the time of issue of the attached Service Proposal. Any additions necessary to cover any additional duty, tax or charge, hereafter imposed by any Government authorities on the equipment or services quoted shall be paid by the Buyer.
11. VALUE ADDED & GOVERNMENT TAX
All prices detailed in this Service Proposal do not include Value Added Tax (VAT) or Government Tax (Sales Tax). If and where it is applicable, Value Added Tax and Government Tax will be added to invoices sent to the Buyer by iHome Systems®.
12. TERMS OF PAYMENT
For all invoices presented to the Buyer, payment of the corresponding value will be made by irrevocable, Domestic Letter of Credit (DLC) or by Local Direct Bank Transfer (TT). The following terms of payment will apply:
- X % of Service Proposal net value down payment as indicated in the attached Proposal. This deposit is in all cases not refundable.
- X% of Service Proposal net value as written in the Service Proposal signed by Buyer.
- X% of Service Proposal net value as written in the Service Proposal signed by Buyer.
- X% of Service Proposal net value after the completion of commissioning (partial commissioning is acceptable) as indicated in the attached Service Proposal. These payments will apply system by system.
iHome Systems® reserves the right to provide Buyer with partial deliveries and partial commissioning completion without foregoing its right to the above percentage of payment as indicated above and in the attached Service Proposal. Changes in the scope of supply or scope of work will not influence the payment schedule and will be invoiced separately as detailed in section titled Variation. All bank charges and transfer fees will be borne by the Buyer.
Until full payment is received by iHome Systems®, iHome Systems® reserves the right to manage the system’s operation as it sees fit.
13. DESIGN OF THE SYSTEM
If Buyer would like iHome Systems® to design the automated home system, information and drawings of various components, including but not limited to electrical plan and furniture plan, must be provided to iHome Systems®, either directly by the Buyer or by the Buyer’s lighting designer, interior designer, or representative.
14. PRE-DESIGN INSPECTION
If construction has commenced when Buyer and iHome Systems® sign the Service Proposal, iHome Systems®’s sales staff or technical staff may inspect the work site and existing system infrastructure in order to properly design the automation system for Buyer. If construction has not yet commenced, iHome Systems® sales staff will proceed to the design process.
15. BASIC INSTALLATION
Installation of control boxes, cables, all related wiring, and all other systems excluded from the Service Proposal will be Buyer’s sole responsibility. Installation of these items at the site must follow and conform to the system design provided by iHome Systems® in order to facilitate commissioning by iHome Systems®.
16. POST-BASIC INSTALLATION INSPECTION
If iHome Systems®’s technical team finds that the installation of control boxes, cables, all related wiring, and all other systems excluded from the Service Proposal do not conform to or otherwise follow the system design provided by iHome Systems®, Buyer shall make all corrections, at Buyer’s sole responsibility, before installation of the remaining products can be performed by iHome Systems®. If iHome Systems® technical teams deem the basic installation to be satisfactory, then the installation of the remaining products can be performed by iHome Systems® after delivery of products and according to the agreed-upon schedule.
17. DELIVERY AND FREEZE DATE
This Service Proposal is based on an approximate delivery schedule of a maximum of twelve (12) months, unless otherwise stated or a delay is caused by the Buyer, from the reception of the requested delivery schedule. A definite and confirmed delivery schedule will be made by iHome Systems® on receipt of a written request for a delivery schedule by Buyer. Delays resulting from the Buyer or the Buyer’s representative, including, but not limited to, the failure to request or obtain a delivery schedule, as well as delays due to lack of complete design information will extend the delivery schedule and will subject the Buyer to expenses and charges defined in section titled Suspension. Buyer forfeits the right to pursue legal claims against iHome Systems® that arise from and/or is based solely on late delivery of products.
18. ACCEPTANCE OF PRODUCTS/EQUIPMENT
The Buyer shall be responsible for receiving, moving, and storing all equipment delivered to the site. All costs incurred by the temporary storage of equipment will be borne by the Buyer. All damages including, but not limited to, those damages caused by or resulting from fire, heat, dust, mold/mildew, humidity, theft, flooding, site disposal, accidents, will be the sole responsibility of the Buyer. All boxed goods that are opened and become damaged during temporary storage are the sole responsibility and liability of Buyer; iHome Systems® shall not be responsible or liability for compensation or replacement to the Buyer.
The Buyer will inspect goods on delivery, and after acceptance of a delivery notice, the Buyer shall be deemed to have accepted the goods in the satisfactory condition.
Claims for errors in shipment and/or delivery must be made within fourteen (14) days of the date after receipt by Buyer. Claims by the Buyer in regard to any defect in equipment must be made with full particulars within thirty (30) days after receipt by Buyer. Claims by the Buyer in regards to any errors in invoicing must be made with full particulars within seven (7) days from the date of invoice. In case of a justifiable claim, iHome Systems® will either replace the defective equipment , adjust the price of the equipment or correct the error in shipment or delivery.
iHome Systems® will install all products according to the signed Service Proposal and the systems design. Commissioning will be deemed complete when all of the individual systems are tested on site and certified by iHome Systems®. As is usual, partial commissioning, meaning completed unit or floor commissioning, will be accepted by the Buyer.
20. ACCEPTANCE OF SYSTEMS
When all of the individual systems are tested on site and certified by iHome Systems®, the customer and iHome Systems® will then inspect the site together and the Buyer will sign the Project Handover Form for the system commissioning acceptance. iHome Systems® will issue certificates of warranty and service for said systems after full payment has been fulfilled by the Buyer. Delays in signing the Project Completion Document or in accepting from the Buyer will subject the Buyer to expenses and charges defined above if said Acceptance is justified. iHome Systems® will request at its discretion the Acceptance of the systems defined in this Service Proposal either as a whole system or as an individual part. The Buyer agrees to accept completed individual systems or partial systems.
If re-work is needed due to technical mistakes made by iHome Systems® or defective products, which Buyer can prove either of these by written evidence, iHome shall be responsible for correction.
If re-work is needed due to Buyer’s request for design change or additional features to the system after the original design was approved by Buyer, Buyer will solely bear all extra costs for additional work to be performed by iHome Systems®, including but not limited to hourly fees for engineers per the industry rate to accommodate the technical revision, and/or any additional products to be ordered.
All ordered products may not be exchanged or refunded.
22. OWNERSHIP AND RISK
Ownership of the equipment and software remains with iHome Systems® until the entire project value stated in the Service Proposal and all other sums due under the Service Proposal have been fully paid to iHome Systems®. If, nevertheless, the client sells the goods or sells the items into which the goods have been incorporated before the goods have been paid for in full, the client shall hold the proceeds of sale in trust for iHome Systems® and iHome Systems® shall be entitled to trace the goods into such items. For the purpose of recovery of goods, iHome Systems® or its representatives may enter upon any of the Buyer’s premises where the goods are stored or where they are reasonably thought to be stored and iHome Systems® may repossess the same. All Risks associated with the systems defined in this Service Proposal will be transferred to the Buyer upon delivery of the products composing the system to the Buyer’s address provided to iHome Systems®. Risk will also pass to the Buyer if the systems are used by the Buyer or any Third Parties, or if the systems are pledged, loaned, committed or sold to any Third Party.
All risks associated with the products defined in this Service Proposal not yet assembled into a system will be transferred to the Buyer upon delivery.
23. PRODUCT WARRANTY
The warranty period for products and systems detailed in the Service Proposal will be either twelve (12) or twenty four (24) months, as stated in the Service Proposal during the defects liability period (DLP) from Acceptance of the system, provided that the goods are preserved or stored and handled according to iHome’s instructions. Warranty shall not include any servicing, material replacement, or otherwise cover damages that result from or are caused by regular wear and tear, misuse, unforeseeable use, damages due to abuse and other conditions detailed by iHome Systems®. Claims for defective equipment or systems must be made in writing by the Buyer or by its representatives. In case of any unjustifiable claims, iHome Systems® will invoice the Buyer or its representatives for the cost of the equipment and the service as detailed below. This warranty is transferrable to subsequent owners of the project or their representatives for the duration remaining on the original warranty period, calculated from the date of warranty issuance; in no way does the warranty duration restart or toll upon the transfer from original Buyer..
24. SERVICE WARRANTY
The warranty period for service of systems and equipment will be twenty-four (24) months, as also stated in the Service Proposal, from acceptance of system (date as written in the Project Handover Form), unless agreed otherwise by both parties in writing. iHome will maintain one dedicated off-site engineer for the maintenance of Buyer’s project during the warranty period. Said engineer will see to the general maintenance and proceed to carry out bi- annual preventive maintenance of the systems during the warranty period. In the event that the Buyer purchases extended Service Warranty, the duration will continue until the expiry of the extended renewal period. This warranty is transferrable to subsequent owners of the project or their representatives for the duration remaining on the original warranty period or renewal warranty period, calculated from the date of warranty issuance; in no way does the warranty duration restart or toll upon the transfer from original Buyer.
25. LIMITATION OF LIABILITY
iHome Systems®’s liability is limited to the obligations thus defined and shall not be liable to the Buyer or any third party by way of indemnity, compensation, or any other legal recourse, for incurred prejudices such as personal injury, damage to property, loss of profit, loss of use, loss of production, loss of contracts or for any indirect, immaterial or consequential damage. In no event regardless of cause, shall iHome Systems® be liable for incidental or consequential damage either real or alleged, direct or indirect.
The Buyer agrees to indemnify and save harmless iHome Systems® for all loss, cost, or damage incurred by iHome Systems® as a result of Buyer’s or a third parties misuse or misapplication of iHome Systems® supplied products or systems.
The overall liability of iHome Systems®, either in tort or in law, shall be limited to the part thereof giving rise to the claim and, under no circumstances, shall exceed 3% of product value price stated in the Proposal. The aggregate amount of liability shall in no way exceed 3% of the total net product price in the Service Proposal.
Furthermore, iHome Systems® shall not be held responsible in the event of delays of delivery or/and supervisory services, due to any reason or event beyond its control, such as, but not limited to, Force Majeure as hereinafter stated. In such cases, an extension of time shall be granted to iHome Systems® to cure its performance.
Whereas iHome Systems® is only responsible for the installation and commissioning of the products and the systems, iHome Systems® bears no direct liability to the Buyer or third parties for any injuries or claims arising out of product defects, whether manufacturing defects, design defects, or failure to warn, whether classified as intentional or negligent, under the Products Liability Act or local equivalent. Should any such claims arise, the Buyer agrees to deal directly with the manufacturing party and save iHome Systems® harmless of any direct claims for all loss, cost, or damage as a result of said defects.
Whereas iHome Systems® is only responsible for the installation and commissioning of the products and the systems, iHome Systems® bears no direct or indirect liability to the Buyer or third parties for any injuries or claims arising out of systems cabling, whether manufacturing or design defects or installation defects, whether classified as intentional or negligent under the Products Liability Act or local equivalent. Should any such claims arise, the Buyer agrees to deal directly with the supplying party and/or installing party for the systems cabling and save iHome Systems® harmless of any direct or indirect claims for all loss, cost, injury or damage as a result of said defects.
26. ALARM SYSTEMS & SECURITY SYSTEMS
iHome Systems®’s liability, when proposing Intruder Alarm and Security Systems, is limited
to obligations thus defined and shall not be liable to the Buyer or any third party by way of indemnity, compensation or any other legal recourse for incurred prejudices defined above as well as for theft, robbery, larceny, assault, battery or any other related damages to the person or property, degradations or injuries, as a result of the Intruder Alarm and Security System functioning or not functioning.
Once Buyer has signed the Service Proposal, iHome Systems® has Buyer’s implied permission to use all documents submitted to iHome Systems® pertaining to the design, layout, perspectives, photos, and system detail of the Buyer’s project for marketing and branding purposes so long as the files/documents are used anonymously; written consent by the Buyer shall be obtained to use the Buyer’s name for marketing/branding.
Each of the Parties shall keep confidential any information, commercial or otherwise, obtained from the other Party pursuant to the Service Proposal, and shall not disclose the same to any third Party without the prior written consent of such other Party. Both the scope of information and the third party to whom the confidential information will be disclosed must be notified to and consented by the other Party in writing.
29. FORCE MAJEURE
Force Majeure shall be defined as any events or circumstances that prevent total or partial execution of the Parties’ performance and cannot be overcome despite reasonable effort on the part of the affected Party. Force Majeure shall include, but shall not be limited to: 1. Acts of God 2. Labour conflicts 3. Fire, explosions, earthquakes, floods 4. Action or failure to act of Public Services or Governmental Authorities 5. Insurrections, riots, breaches of Peace 6. Large increases in material or supply costs defined as over ten percent (10%) of original value.
Neither Party shall be in default or in breach of its obligations to the extent that performance of such obligations is prevented by any circumstances of Force Majeure. If either Party considers that any circumstances of Force Majeure have occurred which may affect performance of its obligations, it shall promptly notify the other Party of such occurrence and of the steps it proposes to take. If circumstances of Force Majeure have occurred and shall continue for a period of ninety (90) days, then either Party shall be entitled to serve upon the other Party a thirty (30) days prior notice to terminate the services defined in the Services Proposal without being in breach of its obligations nor incurring any contractual breach damages for non-performance.
If at the expiry of this ninety (90) day period, Force Majeure still exists, the services defined in the Service Proposal shall be automatically terminated.
If the Services are terminated as aforesaid, iHome Systems® shall be paid by the Buyer (insofar as such amounts or items shall not have already been covered by previous payments) for all supply and/or services executed prior to the date of termination at the rate and prices provided in the Service Proposal. Partial System commission will give rise to identical payment. All paid deposits will be forfeited. The Buyer will also compensate iHome Systems® for any costs incurred in sourcing and arranging for supply of the products and systems not delivered.
The payments to be made under these above mentioned paragraphs shall be considered as a full and final compensation for damages suffered by iHome Systems® as a consequence of termination of the Services under this section.
30. GOVERNING LAW
This document and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the country where the Service Proposal is signed. If any provisions of this Service Proposal are or shall come into conflict with the laws or regulations of any jurisdictions or any governmental entity having jurisdiction over the parties or this Proposal, those provisions shall be deemed automatically deleted, if such deletion is allowed by relevant laws, and the remaining terms and conditions of this Proposal, including the Terms and Conditions, shall remain in full force and effect. If such a deletion is not allowed or if such a deletion leaves terms thereby made clearly illogical or inappropriate in effect, the parties agree to substitute new terms as similar in effect to the present terms of this Agreement as may be allowed under the applicable laws and regulations.
The failure of a Party to insist on strict performance of any provisions of this Service Proposal or to exercise any right, power or remedy upon a breach hereof shall not constitute a waiver of any provision of these Terms and Conditions or limit the Party’s right thereafter to enforce any provision or exercise any right, power or remedy.
The terms and provisions of this Agreement may be waived, amended, supplemented or otherwise modified only by a written instrument executed by the Parties specifically and clearly stating that it is an amendment to this Service Proposal and the Terms and Conditions. Any purported amendment to this Service Proposal that shall fail to comply with this Section shall not vary in any respect whatsoever the terms of this Service Proposal.
The validity of the Sections, detailed here provisions, terms and parts of this Service Proposal or Terms and Conditions shall not be affected by a court, administrative board or other proceeding of competent jurisdiction deciding that a Section, provision, term or part of this Service Proposal is illegal, unenforceable, in conflict with any law or contrary to public policy. In such event the Parties shall, by amendment of this Proposal, properly replace such provision with a reasonable new provision or provisions that, as far as legally possible, shall approximate to what the Parties intended by such original provision and the purpose thereof.
The Service Proposal may be executed in and contain a number of counterparts, all of which taken together shall constitute one instrument.