STANDARD TERMS AND CONDITIONS OF SALE
1. HOW THIS AGREEMENT WORKS
1.1 The Customer would like to purchase Engineering Services which includes any of hardware development
and/or design and/or software development and/or manufacture and/or assembly of Products or both. from
the Company. The Company in turn is willing to provide manufacturing and/or assembly of products and/or
Engineering Services or both to the Customer.
1.2 This Agreement, which compromises a selection of the following documents: These Standard Terms and
Conditions and the Deed of Suretyship, together with any Quotation, Invoices and Delivery Notes applicable
to the goods and services, will govern the relationship between the Parties.
1.3 If there is any conflict between any of these documents, they will be interpreted in descending order of
precedence as follows, these Standard Terms and Conditions (this document), then the Quotation, Invoice
and Delivery Note unless otherwise expressly stated elsewhere in writing.
1.4 By ordering or making use of the Products or Engineering Services provided by the Company, or by
indicating your acceptance of this Agreement by signature or in any other way, the Customer agrees to be
bound by the Standard Terms and Conditions of the Company, as well as the Quotation, Invoice and Delivery
Notes applicable to the Products or Engineering Services concerned.
1.5 DEFINITIONS
In this Agreement, unless the context otherwise requires, the words and expressions contained below will bear
the meaning assigned to them:
1.5.1 “Company” means Firmlogik(Pty)Ltd.
1.5.2 “Customer” means the person indicated as below in these Standard Terms and Conditions and
on the Quotation, Invoice and Delivery Note.
1.5.3 “CPA” means the Customer Protection Act 68 of 2008.
1.5.4 “Delivery Note” means a written record of the Goods as received by the Customer from the
Company.
1.5.5 “Entity” means any person, firm, close corporation, company, partnership, association or other
legal entity of any nature whatsoever1.5.6 “Engineering Services” means hardware development and design and/or software development
and/or design and/or prototype manufacturing.
1.5.7 “Party” means either of the signatories to this Agreement and “Parties” means both of them
collectively.
1.5.8 “Personnel” means any director, employee, agent, consultant, contractor or other Party
representative.
1.5.9 “Price” means the price set out in the Quotation.
1.5.10 “Products” means Products that is manufactured and assembled by the Company for the
Customer, which in turn sells same to the Customer.
1.5.11 “Quotation” means the written quotation document, indicated as such on the face of it, and that
is provided to the Customer by the Company.
1.5.12 “Repair” means a repair provided to the Customer by the Company in terms of the Agreement.
1.5.13 “Schedule” means a schedule to any of the documents making up this Agreement, whether part
of the Agreement at the Commencement Date or date of signature or appended to it by
subsequent agreement between Parties.
1.5.14 “Standard Terms and Conditions” means this written document entitled “Standard Terms and
Conditions” to the exclusion of the Quotation, the Invoice, the Delivery Note and any Schedules
or annexures to this document.
1.5.15 “Supplier” means a supplier of goods and/or services to the Company.
1.5.16 “Time and Materials” means the rate applicable to the Company’s Personnel according to the
Company’s time and materials fees and charges as amended from time to time, at the rate
which is applied to the Company’s customer’s generally, with reference to such Personnel’s
seniority and expertise either set out in the relevant Service Order or otherwise as generally
charged by the Company to its customers. The Customer will in addition be charged for
materials and other expenses reasonably and actually incurred.
1.5.17 “VAT” means Value Added Tax payable in accordance with the Value Added Tax, 39 of 1991.
2. QUOTE, PRICE AND DELIVERY
2.1. Invoice for Engineering Services and manufacture and/or assembly of Products: On acceptance of the
Quotation the Customer shall issue a purchase order to the company, the Company will provide the
Customer with an Invoice prior to delivery to the Customer for Products; and for Engineering Services,
on the completion thereof.
2.2. Payment for manufacture and/or assembly of Products and Engineering Services
2.2.1. For Cash on Delivery (“COD”) accounts as per clause 4.1.1 or where the Company requires a
deposit to be made, the Customer must make payment to the Company of the whole amount of
the invoice, on presentation of the invoice and prior to collection/delivery of the Products and/or
release of software.
2.2.2 Where a Customer Credit Application Form(for an agreed Credit Limit) has been accepted by the
Company and an account number has been alllocated to the customer, the invoices are due and
payable without deduction or set-off within 30 (Thirty) days from date of invoice. This is subject
to the Credit Limit being sufficient to cover the invoice amount failing which the shortfall will be
deemed as if COD and the COD terms shall apply. Any account addressed to the customer by
the Company shall be prima facie proof of the amount owing free of exchange and set-off. If theCompany has agreed in writing to other payment terms, then such payment terms will prevail,
and the Customer must make payment in accordance with such terms.
2.2.3. In the event of the issuance of a Credit Withdrawal Notice, all invoices subsequent to such
notice shall be payable on a COD-basis.
2.2.4. In the event of the client failing to make payment of any amount due by it to the Comapny, then
the full amount owed by the client to the Company from whatsoever cause arising shall
forthwith and without notice become due and payable immediately, notwithstanding that the due
date for payment thereof shall not otherwise have arrived.
2.2.5. Non-payment by the client as set out above shall give the Company the right to stop all
deliveries still to be made under this contract without notice having to be given to the client and
without prejudice to the Company’s rights to compensation from the client.
2.3. Fees. The fee for performing the manufacture and/or assembly of products and Engineering Services is
set out in the Quotation.
2.4. Risk on Delivery, Ownership only on Payment in Full. Notwithstanding any other provision in this
Agreement or otherwise, risk in and to the products will pass to the customer on delivery to (when the
products are made available to the customer) or collection by the customer or the customer’s selected
courier collects the products and from that moment all risk of damage and loss will fall on the customer,
which must take relevant steps to insure the products and otherwise mitigate its risk of loss. Ownership
of the Producst supplied by the Company, will only pass to the Customer on receipt by the Comapny of
payment of its invoices in full.
2.5. Delivery and Risk of Ownership
2.5.1. Delivery Date and Time: The time of delivery is as specified in the Quotation, which is based on
the Quotation, and is quoted in working weeks excluding the Company shutdowns; Any
additional time for witnessed inspection has not been included in the delivery time specified in
the Quotation.
2.5.2. Deemed Delivery Date: Delivery will be calculated from the date reflected on the Delivery Note.
2.5.3. Documentation Required: Delivery is based upon all required documentation being received from
the customer as indicated in clause 2.5.6 below.
2.5.4. Supplier Obligations: Delivery is based upon the Supplier’s capacity at the time of Quotation, and
which capacity is beyond the control of the Company. This may be impacted if there is a delay in
receiving the Customer’s confirmation/order after the quotation is provided to the Customer.
2.5.5. Estimate: All dates and periods for delivery are estimated, and subject to availability of the
resources, and do not constitute fixed times for delivery by the Company and time of delivery
shall not be the essence of this Agreement nor shall the Customer be entitled to make, or to
purport to make, time for delivery of the essence of the Agreement unless expressly otherwise
agreed in writing by the Company.
2.5.6. Other Factors: The date for delivery shall in every case be dependent upon prompt receipt of all
necessary information, final instructions or approvals from the Customer. In the event of a delay
in or non-delivery by the Company of its obligations in terms of this Agreement, the provisions
of clause 11.5 will apply.
2.5.7. Postponement Request by the Customer: Where the Customer requests and the Company agrees
to postpone delivery, or where delivery is otherwise postponed without default by the Company,the Customer shall upon demand pay all the reasonable costs and expenses including
reasonable storage and transport costs.
2.5.8. Supply is Ex Works: The Products will be supplied “ex works” (“EXW”- INCOTERMS 2020) unless
otherwise agreed in writing. The Selected Carrier will be deemed to act on behalf of the
Customer upon collection of the Products from the Company’s premises and the Customer
must file any claims for loss or damage to the Products during transit with such Selected
Carrier.
2.6. Appointment of Carrier. The Company may, at the Customer’s request:
2.6.1. appoint a carrier on behalf of the Customer, to transport the Products for the Customer to a
destination specified by the Customer. If the Company does so, then,
2.6.1.1. the Company is hereby authorised by the Customer to appoint a carrier on
such terms and conditions as the Company deems fit;
2.6.1.2 the carrier appointed by the Company is the Customer’s agent and the
Customer is responsible for paying the carrier fees, unless otherwise agreed to
in writing;
2.6.1.3. the products are loaded and transported at the Customer’s risk;
2.6.1.4. the Customer hereby waives and indemnifies the Company against any claim
which the Company may suffer, and which arises from, or in connection with,
the appointment of the carrier and/or the carrier’s breach of its obligations or
failure to perform at all; or
2.6.2. itself transport the Products for the Customer to a destination specified by the Customer. If the
Company does so, then it will not be bound by delivery times but will use its reasonable
endeavours to adhere to dates and times as agreed and subject to availability of transport; and
subject to clause 2.6.3 below and to the extent permitted by applicable law, the Customer:
2.6.2.1. Indemnifies the company from all liability relating to damages, losses or
injuries that may occur howsoever caused during the operation, transportation,
hoisting, rigging, loading or offloading of products on behalf of the customer,
regardless of whether such losses, damages or injuries are caused by
negligence of the company; and
2.6.2.2. Will be liable for any loss or damage to the products, which occurs whilst such
products is being operated, rigged, hoisted, loaded, offloaded or transported by
the Company, or to anyone under the employ of the Company. In the event that
any person is supplied by the Company to assist the customer in operating,
rigging, hoisting, loading, offloading or transporting the equipment at any time,
such person will be deemed to be under the absolute supervision and control of
the Customer who shall be responsible for all acts or omissions of such person.
2.6.3. CPA Applies to Minimum Extent Permissible when the Company is the Carrier. If the CPA is
applicable, then in the event that the Customer requests the Company to transport the Products,
the Company may specify such additional terms as it deems necessary to provide for the
additional risk that it must assume.
2.7. Other Provisions for manufacture and assembly of Products.
2.7.1. Despite any other provision of this Agreement, the Company’s obligation to provide Products is
subject to the Company’s ability to source timeously from Suppliers reasonably andcommercially acceptable to it, all components and materials required for, or in connection with
the development and production of products.
2.7.2. It is the Company’s responsibility to have all Acceptance Test Procedures(ATPs) and Jigs ready,
qualified and approved by the client at the start of production.
2.7.3 If the client provides components, materials and test equipment for manufacture and assembly
the following conditions are applicable:
2.7.3.1. The Company takes no responsibility and accepts no liability for short supply or the
supply of incorrect components by the client.
2.7.3.2. Where the Company has to procure additional componets or materials to make up for
client short supply, it will be for the client’s account and will be payable against receipt
of an invoice from the Company.
2.7.3.3. The Company reserves the right to cancel the contract and re-quote in the event that
reworks are required due to incorrectly or short supplied components.
2.7.3.4. Sufficient contingency material should be supplied for wastages, especially for Surface
Mount Technology (SMT) components. The Company reserves the right to re-quote and
claim for additional work in such instances where insufficient feeding quantities and/or
contingencies are supplied. (At least 5% contingency will be supplied on SMT
Components).
2.7.3.5. The Company accepts no responsibility for poor/non wetting of client supplied
components and/or PCBs.
2.7.3.6. The client will be responsible for costs associated with re-works on products where
client supplier components did not wet sufficiently or where components are of poor
quality. All costs for which the client is responsible will be payable against the receipt of
an Invoice from the Company for such costs.
2.7.3.7. Any additional work that needs to be done due to client supplied components that are
not of good quality or that are not delivered timely, will be for the client’s account and
will be payable against receipt of an Invoice by the Company in this regard. The
Company reserves the right to re-quote in such instances.
2.7.3.8. No kits will be released for manufacture or assembly until all the components and/or
materials have been received by the Company in its stores. No production will take
place until all components have been accepted by the Company. In the event of the
client requesting manufacturing to continue with shortages, the Company will deliver
PCB Assembly and Invoice the items with such shortages.
2.7.3.9. All client supplied balled devices needs to be supplied with its lead/lead-free status
attached. In cases where this is unknown, the Company accepts no responsibility for
the outcome of successfully placing and soldering these devices. Therefore the client
will be responsible for any additional costs associated with replacing and touching up of
these devices, which costs will be payable against the receipt of an Invoice from the
Company for such costs. The Company reserves the right to re-quote in such instances.
2.7.3.10.The Company accepts no liability for client supplied components that are faulty and
consequently will not offer a warranty on such components.
2.7.3.11.All additional modifications requested by the client, will be costed, quoted as well as all
additional Technician time incurred, will be for the client’s account and will be payable
against the receipt of an Invoice from the Company in this regard.2.7.3.12.Any and all deviations and/or alterations to the Quotation as accepted will be for the
client’s account and will be payable against the receipt of an Invoice from the Company
in this regard.
2.8 Other provisions for Engineering Service
2.8.1. Despite any other provision of this Agreement, the Company’s obligation to provide
Engineering Services is subject to the Company’s ability to source timeously from
Suppliers reasonably and commercially acceptable to it, all components and materials
required for, or in connection with the development of products and associated
software.
2.8.2. All additional modifications requested by the client, will be costed, quoted as well as all
additional Technician time incurred, will be for the client’s account and will be payable
against the receipt of an Invoice from the Company in this regard.
2.9. Inspection and Notification of Defects. Upon delivery of the products the Customer will conduct an
inspection on the products to ensure that products are not faulty or damaged. Damaged products must
be returned within 30 (thirty) days of receipt of the products at the client’s premises. Receipt of the
products at the client’s premises in exchange for a signature on a delivery note shall be conclusive proof
of the client’s acceptance of the products delivered in good order and condition and also as to the
quality and nature of such products.
2.10 Warranties by the Company
2.10.1. Products. Subject to clause 2.10, all workmanship is guaranteed for a period of 12
months from date of delivery, against any defects, which may occur under normal and
proper use unless otherwise specified by the Company in writing.
2.10.2. The Company’s liability in respect to clause 2.10.1 shall be limited to the correction, at
its discrestion, of the defective worksmanship provided that:
2.10.2.1.Products are returned to Firmlogik, Unit 7, 78 Rooiberg Street, N4 Gateway
Industrial Park, Pretoria, with the mutual consent of the Company and the
customer to do so.
2.10.2.2.That the Company is satisfied that the conditions regarding normal and proper
use are applicable as agreed by the Quality Assurance (QA) representative of
the Company and the client.
2.10.2.3.No payment shall be withheld by the client with respect to warranty claims,
unless agreed to in writing by the Company.
2.10.3. Limitation on Claim. Any claim made by the Customer under the warranty is limited to
the unit price of the individual product as specified in the Delivery Note or Quotation.
2.10.4. Warranty Void. Any additions or modifications carried out by the Customer on the
equipment shall render any warranty on the products delivered void.
2.10.5. Authorised Parts. To maintain the product/s warranty, all parts, and/or spares for the
products must be purchased from the Company.
2.10.6. Defects. the Company shall not be liable for and the Customer shall indemnify the
Company against all costs, claims, damages, liabilities and expenses incurred by theCompany arising from any use by the Customer of the products after the Customer
became or ought reasonably to have been aware of a defect (latent or patent).
2.10.7. Presentment of Part. Where a product is supplied as a replacement for a faulty product which is
under warranty, if the faulty product is not returned for the warranty claim assessment within 30
(thirty) business days after the supply of the replacement then, an invoice will be raised for the
value of the product and will become payable within a period of 30 (thirty) calender days from
the date of supply.
2.10.8. Changes in Design.
2.10.8.1 .Product is designed and manufactured by the Company: the Company reserves
the right to change the design and use alternative components for manufacture
and assembly when and if necessary.
2.10.8.2.Product is designed by the Customer and manufactured by the Company. The
client will supply adequate documentation to enable the Company to
successfully manufacture and assemble the produts. The documentation once
agreed by the Company, and the client will form the production base line. If
changes must be made to the design or alternative components have to be
used, it can only be done with written agreement from the client.
2.10.9. CPA Proviso. If the CPA applies to this Agreement, the provisions of this Agreement or of this
clause 2.10 will not be interpreted in such a way as to exclude the Customer’s rights under
sections 54 (Right to quality service), 55 (Right to safe, good quality goods), or 56 (Implied
warranty or quality) of the CPA. These sections however apply only to the minimum possible
extent. Unless the contrary is state elsewhere in this Agreement, the Customer will have no
rights of implied warranty of quality beyond those explicity stated in those sections.
3. QUOTATION AND PRICING
3.1. Quotations - Pricing. When the Company provides a Quotation:
3.1.1. the Quotation is open for acceptance by the Customer for a period of 14 (fourteen) days from
the date reflected on the Quotation, or the day that the Quotation is transmitted or provided to
the Customer, whichever is sooner in time, or a period as specified on the quotation or as
otherwise agreed in writing. Firmlogik reserves the right to re-quote if the period during which
the quote was valid, expired.
3.1.2. the Customer must indicate acceptance of the Quotation in writing by returning the signed
Quote to the Company or by issuing a Customer Purchase Order; and
3.1.3. unless the Customer accepts the Quotation, the Company is no longer bound by the Quotation
in any respect, including but not limited to the Quotation Price, and reserves the right to change
the Quotation Price without prior notice to the Customer.
3.2. Change to Quoted Price. The Company:
3.2.1. subject to clause 3.2.3 , is bound by the Quotation Price for as long as the Quotation is open for
acceptance by the Customer (see clause 3.1.1 above), and
3.2.2. subject to clause 3.2.3 , is bound by the Quotation Price once the Customer has indicated its
acceptance of the Quotation, (see clause 3.2.1 above),
3.2.3. notwithstanding clauses 3.2.1 and 3.2.2 above, may adjust the Quotation Price if there is an
increase in the cost of the materials due to exchange rate fluctuations in the currency in whichthe Company makes payment for materials included in the Quotaton Price, or if there are any
increases in the costs of materials, labour, transport, utilities, currency regulation or alteration of
duties or if the costs of the Company are increased by any other factor beyond reasonable
control of the Company.
3.2.4. Notwithstanding clause 3.2.2 above, all Engineering Service quotations set out an estimate of
the fees payable by the Customer for the Engineering Services and it is not binding on the
Company. Any additional work deemed necessary after initial completion of the work by the
Company will be quoted separately.
3.3. Change to Listed Price. The Company is not bound by the Listed Price and the reserves the right to
change Listed Prices at any time and without prior notice to the Customer.
3.4. Quotation General Provisions. Quotations from the Company:
3.4.1. are based on availability of components and other materials at the time of the Quotation and the
Company will not be liable to the Customer due to non-availability: however, components and
parts may be reserved upon written request and : and
3.4.2. are based on specifications provided by the Customer, and accordingly:
3.4.2.1. the Customer must ensure that the selections of components and materials are
suitable for the Customer’s requirements. In the event discrepancies exist
between the Quotation and the Customer’s requirements, the Company must be
advised by notice in writing immediately failing which it deemed that the
quotation is correct in all respects. The Company will use its reasonable
endeavours to rectify any discrepances however, the Customer will be liable for,
and the Company will be entitled to claim, any costs incurred as a result; and
3.4.2.2. if the Customer makes a request as to any alteration in quantity, design or
specification provided on a Quotation, whether before or after the Customer has
indicated its acceptance of the Quotation, (see clause 3.1.2 above) then the
Company will be entitled to make adjustmenst to the Quotation, and if the
Customer has already indicated its acceptance of the Quotation, the Customer
will be liable for, and the Company will be entitled to claim, any costs incurred
as a result.
3.5. Other Costs. Unless otherwise stated, the Quoted Price exclude freight and insurance which additional
costs are to be paid by the Customer.
3.6. Prices in Rand. All prices quoted or stated by the Company are in South African Rand and exclude VAT,
unless otherwise agreed in writing and/or unless specified that another currency is used for the
Quotation.
3.7. Continuing Standard Terms and Conditions. If the Customer has already agreed to the Standard Terms
and Conditions by way of same having been attached to a Quotation or Customer Account Application
Form, then the Standard Terms and Conditions will continue to apply to all subsequent Quotations or
Products or Engineering Services provided to the Customer.4. PAYMENT
4.1. Payment
4.1.1. Payment for the first 2 (two) orders will be Cash on Delivery (COD) and
4.1.2. Thereafter, subject to completion and approval of Firmlogik’s Customer Credit Application
documentation, payment is to be within 30 (thirty) days of the date of the invoice.
4.2. Method of Payment. All amounts must be paid by the Customer, in accordance with the terms of the
relevant invoice presented by the Company, and only by way of electronic funds transfer into a bank
account to be nominated by the Company from time to time, and free of bank charges or other charges,
including but not limited to foreign exchange charges. No cash deposit into the Company’s bank account
will be permitted, unless the Customer makes extra provision for additional bank fees and charges
occasioned by such cash payment.
4.3. No Other Conditions. Unless agreed to in writing by the Company prior to the Quotation, retention bonds
and performance bonds shall not be accepted by the Company.
4.4. Purchase Order and Terms and Conditions Presented by Customer. If the Customer is required to
present for signature to the Company its own purchase order, application for purchases and services
document, terms and conditions, vendor application or similar document, and
4.4.1. presents such a document, then if the said purchase order contains any terms and conditions,
then this Agreement will prevail over the said purchase order to the extent of any conflict
between this Agreement and the said purchase order; and
4.4.2. if the Customer fails to present such a document, then the Customer will nevertheless be bound
by this Agreement, including but not limited to the payment terms as contained in this clause 4
(Payment), and in accordance with the terms of the relevant invoice present to the Customer in
terms of this Agreement.
4.5. Customer Account Application. The Company is not obliged, and will in its sole discretion decide on
whether, to grant to the Customer, an account in terms of which the Company will permit the Customer
to make payment to the Company on terms set out in the Custome Account Application Form and these
terms and conditions. The Company is permitted to conduct a credit bureau search, in accordance with
clause 4.6 below, from time to time, and amend the terms of its Customer Account Application Form
from time to time by notice in writing to the Customer. Notwithstanding anything to the contrary herein,
the Company shall be entitled without charge or penalty whatsoever to provide formal written notice to
the Customer of withdrawal of the account that has been granted, and made available to the Customer
under the Customer Account Application Form on 5 (Five) days’ notice to the Customer (hereafter the
“Credit Withdrawal Notice”) in the event that-
4.5.1. the Customer commits a breach of these terms and conditions including the failure to pay any
amounts incurred hereunder in full by due date; or
4.5.2. there is a material change in the nature of the Customer’s business which, in the reasonable
opinion of the Company, would influence or affect the Customer’s ability to meet the terms of
payment applicable in respect of the account terms granted; and the issue of the Credit
Withdrawal Notice shall be without prejudice to the Company’s rights under this Agreement.
4.6. Certificate Proof. A certificate signed by any authorised signatory of the Company (whose appointment
and/or authority and/or designation it shall not be necessary to prove) setting out the Customer’s liability
hereunder shall, in the absence of manifest error, be prima facie proof, being evident on the face of it
and in the absence of other proof to the contrary, of the matters stated therein and such proof may be
tendered and used for all purposes, including for the purposes of pleading and of obtaining provisional
sentence or default, summary or other judgement thereon.4.7. Credit Bureau Search. The Company and/or its cessionary/ies and/or credit partner/s, may at any time
obtain bank and trade references and perform credit checks utilising external credit bureaux. These
credit checks may be based on information the Customer provides to the Company and/or its
cessionary/ies and/or credit partner/s, or that the Company already has about the Customer
or that the Company may record about the Customer when interacting with it, including information
received from enquiries made by the Company regarding the Customer Application Form and
information received from searches made by the Company with any credit bureaux, or third parties who
are permitted to provide information. The Company and/or its cessionary/ies and/or credit partner/s, may
be required to provide to credit bureaux, information supplied by the Customer to the Company in the
Customer Account Application Form, and the Customer hereby warrants that it has also obtained
consent from any third parties whose information is provided to the Company in the Customer Account
Application Form. In addition, credit bureaux will record search details conducted by the Company
and/or its cessionary/ies and/or credit partner/s, and the Company and/or its cessionary/ies and/or credit
partner/s, will also provide the information referred to in the Customer Account Application Form, to
them about any account held with it, including information about payments to the Company, missed
payments, and account arrears. Information held by bureaux may be linked to other people with whom
the Customer has a financial association,
4.8. Payment Overdue. All amounts not paid by the Customer on due date shall, at the election of the
Company, accrue interest at a rate of 2% (two per cent) per calendar month (or such
other maximum rate of interest as may be prescribed in respect of incidental credit agreements
pursuant to the National Credit Act and any regulation published thereunder), from the
due date until date of final payment, both days inclusive
5. WARRANTIES BY THE CUSTOMER
5.1 Warranty. The Customer warrants that it has obtained permissions and consents as may be required in
law to enable it to compy with the terms of this Agreement.
6. PERSONAL INFORMATION
6.1. Definitions. In this Agreement, the terms “Data Subject”, “Personal Information” and “Processing” have
the meanings assigned to them in the Protection of Personal Information Act 4 of 2013.
6.2. Responsibilities. It is hereby recorded that with regards to Processing of Personal Information:
6.2.1. the Company and the Customer are each responsible for complying with their respective
obligations under applicable laws governing the processing of Personal Information.
6.2.3. The Customer remains responsible to update their personal information and special personal
information as defined in the Protection of Personal information Act, 4 of 2013.
6.2.4. The Company warrants to take appropriate, reasonable technical and organisation
measures to prevent loss of damage to or unauthorised destruction of the Customer’s
personal information and unlawful access to or producing of the Customer’s personal
information.
6.2.5. In the event that the Company becomes aware of any unauthorised use of the Customer’s
personal information, the Company will notify the Customer thereof.6.3. Consent.
6.3.1. The Customer hereby voluntarily authorises the Company to process the Customer’s and/or its
employee’s personal information (including name, credit card and banking details, physical
address, telephone numbers and; any other information provided to the Company).
6.3.2. The Customer indemnifies the Company against any action by the employees of the Customer
insofar as processing of their personal and special personal information is concerned.
6.3.3. Processing shall include the collection, receipt, recording, organisation, collation, storage,
updating or modification, retrieval, alteration, consultation, use; dissemination by means of
transmission, distribution or making available in any other form; or merging, linking, as well as
blocking, degradation, erasure, or destruction of information. This consent is effective
immediately and will endure until this relationship between the Customer and the Company has
been terminated.
6.3.4. By agreeing to the terms of this Agreement the Customer expressly consents to the processing of
special personal information as defined in the Protection of Personal
Information Act, 4 of 2013, by the Company.
6.4. Trans-border Personal Information flows: It is hereby recorded that with regard to trans-border Personal
Information flows:
6.4.1. The Customer warrants that it has obtained the Data Subjects’ consent to the Company
transferring Personal Information across country borders for purposes consistent with providing
the Services, alternatively that it is lawful for the Personal Information to be transferred in that
way.
6.4.2. The Customer is solely responsible for determining that any transfer of Personal Information
across a country border complies with the applicable laws.
6.4.3. The Customer hereby expressly consents to the processing of its personal information by way of
the trans-border flow of information. This will occur where personal information has to be sent
to service providers outside of the Republic of South Africa for storage or further processing
processes on the Customer’s behalf
7. INTELLECTUAL PROPERTY
7.1. No General Licence Granted. Nothing in this Agreement will be interpreted as granting either the
Company or the Customer a license to deal in any way with any Intellectual Property owned by the
other, nor will anything be construed as an assingment of Intellectual Property to the other, unless
otherwise agreed in writing or in this Agreement.
7.2. Limited Licence. If the Company provides the Customer with Software, Manuals or other Intellectual
Property as part of providing a Service or Products, and it holds Intellectual Property rights to the
Software, Manuals or other Intellectual Property, it grants the Customer a non-exclusive, nontransferable licence to use that Software, Manuals or othe Intellectual Property:
7.2.1. only for the Customer’s own purposes;
7.2.2. for making use of the Products; and for the duration of this Agreement and subject to its terms.
7.3. Trade Mark. The Customer shall not copy the whole or any part of the Software and/or the Unit, save as
otherwise provided in this Agreement. The Customer is also not permitted to reverse engineer,
disassemble, translate, adapt, modify, alter or in any way decode the whole or any part of the Software
and/or Products; convert the whole or any part of the Software form object code to source code; mergeof combine the whole or any part of the Software with any other computer software or documentation,
part with possesion of, lend, assign, lease, sub-licence, transfer or otherwise provide electronically any
part of the Software and/or Products or any copy or part thereof to any other person; use any of the
Comapny’s confidential information contained in or derived from the Software and/or Products or to
develop or market any software which is substantially similar in its function or expression to any part of
the Software; or use the Software for the business needs of another person or entity.
7.4. Ownership.
7.4.1. If the Company has been contracted to develop any Intellectual Property for the Customer, full
ownership of the Intellectual Property will be transferred to the Customer upon receipt of final
payment of all invoices for the work that was done in the development.
7.4.2. The Customer acknowledges that any and all of the Intellectual Property used or embodied in
the Company’s own products will remain the sole property of the Company. The Customer shall
not question or dispute the ownership of such rights at any time during the continuation in force
of the Agreement or thereafter.
7.5. Infringement. The Customer must notify the Company as soon as practicable after it becomes aware of:
7.5.1. any actual, threatened or suspected infringement of the Intellectual Property; or
7.5.2. any claim brought against the Customer alleging that its use of the Software infringes the
Copyright, or any other Intellectual Property belonging to or alleged to belong to the claimant.
8. LIMITATION OF LIABILITY AND INDEMNITY
8.1. Damages. For the purposes of this clause “damages” means and includes:
8.1.1. all losses, liabilities, and damages relating to or arising from this Agreement or the Services or
the Products, howsoever arising, whether out of breach of express or implied warranty, breach
of contract, misinterpretation, negligence, vicarious or strict liability, in delict or otherwise, and
whether foreseen by either of the Parties or not; and
8.1.2. any legal costs (including legal fees at an attorney and client scale and disbursements and costs
of investigation, litigation, settlement, judgment, interest and penalties) or other costs, claims or
demands.
8.2. Indirect damages. To the extent permitted by applicable law, including but not limited to the CPA, the
company will not be liable to the customer or any third party (including by way of indemnity as set out in
clause 8.5 or elsewhere) for any indirect damages (including consequential, extrinsic, special or
incidental loss or damages which will include but not be limited to loss of property or loss of profit,
business, goodwill, revenue or anticpated savings), or aggravated damages.
8.3. Direct damages. Unless clause 9.6 is applicable, the parties agree that the company will not be liable to
the customer or any third party for any direct damages, whether occurring in contract, delict or
otherwise.
8.4. No Warranty. The Company shall not be bound by any warranty, condition, undertaking or term, express
or implied, as to the condition, quality, performance or fitness for a particular purpose of the Products or
Services, or any part thereof, not expressly provided for in this Agreement.
8.5. Indemnity. To the extent permitted by applicable law, the customer will indemnify, defend, and hold the
company and its affiliates harmless from any and all damages claimed by any third party agains the
company or its affiliates relating to or arising from the agreement or provision of the services, including
without limitation;8.5.1. Breach by the customer of privacy rights, including the infringement of any law (whether South
African or foreign) governing protection of personal information or cross-border data flows;
8.5.2. Breach by a third party of its obligations to the customer, including but not limited to ensuring the
required and appropriate safety measures are implemented and take place at any location or site
at which the products will be used.
8.5.3. The infringement by the customer of any intellectual property right; or
8.5.4. Any unlawful act or a breach of this agreement by the customer, to the extent that such damages
are not caused by the company’s breach of this agreement.
8.6. Consumer Protection Act Application. If the CPA is applicable to this Agreement, the provisions of this
Agreement or of this clause 9 will not be interpreted so as to exclude the Customer’s rights under
sections 54, 55 and 56 of the CPA, which are admitted only to the minimum possible extent. Unless the
contrary is stated elsewhere in this Agreement, the Custome will have no rights of impliets warranty of
quality beyond those explicity stated in this Agreement or the aforementioned sections.
9. APPLICATION OF THE CONSUMER PROTECTION ACT
9.1. Values. If the Customer is a juristic person then the CPA applies to this Agreement only if both the
Customer’s asset value and annual turnover (the “Business Values”) are less than the threshold
determined in accordance with the CPA from time to time (the “Threshold Value”) on the date the
Agreement is entered into. Both the Business Values and the Threshold Value may be amended in terms
of the CPA.
9.2. CPA Duties Vary. The Company’s duties under this Agreement may vary depending upon whether the
CPA applies to this Agreement, and the Company will act upon the information given by the Customer in
this regard. Consequently:
9.2.1. the Customer warrants that any statement made to the Company in respect of its Business
Values is accurate.
9.2.2. If the Customer claims that all the Business Values are below the Threshold Value, or otherwise
that the CPA applies to this Agreement, the Company may at its instance require the Custome to
provide it with financial statements as proof thereof.
9.2.3. If the Customer misstates the Business Values (whether negligently or otherwise) in such a
way that the Company believes that this Agreement is subject to the CPA when it is not, then the
Company may retroactively apply any provisions of this Agreement that were not applied as
result of this belief.
9.2.4. The Customer will be liable for any costs or damage sustained by the Company resulting from
such misstatement.
9.3. CPA will Prevail. If the CPA is applicable to this Agreement, the provisions of the CPA will be applied and
take precedence where they contradict any provision of this Agreement.
10. BREACH AND TERMINATION
10.1. Breach If either Party:
10.1.1. fails to comply with any of its obligations or commits a breach of this Agreement and fails to
remedy the default or breach within 5 (five) Business Days after having received a written notice
to do so,10.1.2. fails to make payment in full of any amounts on the due date per this agreement and fails to
remedy such breach within 5 (five) days of notice calling upon a party to do so,
10.1.3. resolves to begin business rescue proceedings as contemplated in chapter 6 of the Companies’
Act 71 of 2008,
10.1.4. is placed in provisional or final liquidation or sequestration, or judicial management,
10.1.5. enters into any compromise arrangements with its creditors,
10.1.6. fails to satisfy a judgment taken against it within ten (10) Business Days, or
10.1.7. falls under the controlling interest or ownership of a competitor of the other Party (for the
purpose of this clause, the Party which makes this allegation will carry the burden to prove it),
the other Party will be entitled either:
10.1.8. to hold the Party in breach to the Agreement and shall be entitled to claim specific performance;
or
10.1.9. to cancel the Agreement.
10.2. Consequences of Termination - Company Election. If this Agreement is terminated for any reason, the
Company may in its sole discretion elect to suspend all further deliveries that are due to the Customer.
Upon cancellation by either party, all and any amounts incurred under or pursuant to these terms and
conditions shalle immediately become due, owing and payable to the other party.
10.3. In the event that the Company is required to enforce its rights under these terms and conditions,
including those rights pursuant to this clause 11 , the Company shall be entitled to claim and recover its
legal costs on an attorney and client scale including collection commission, anf the customer shall be
required to pay such costs on demand.
10.4. No Effect on Rights to Claim Damages. The provisions of this clause will not affect the rights of either
Party to claim damages in respect of a breach of any of the provisions of this Agreement.
10.5. Delay. Notwithstanding the above provisions of this clause 11 , should the Company be prevented or
delayed from performing any of its obligations under these terms and conditions due to circumstances
beyond its control, the Company shall not be liable for such non-performance, or be liable to the
Customer for any damages as a result of such delaym and furthermore, shall be entitled to terminate
these terms and conditions on 5 (five) days’ written notice or to extend the time for performance of its
obligations by a period at least equivalent to that during which performance has been prevented or
delayed by any such circumstance.
10.6. Change of Control and Termination by the Company. In the event of a Change of Control in the
Customer the Customer must advise the Company in writing. The Company may terminate this
Agreement forthwith if there is a Change of Control of the Customer, provided such a right of
termination may not be unreasonably exercised and will only be exercisable by the Company giving
notice of such termination within 6(six) months of the transaction (or in the case og a series of related
transactions, the final transaction) constituting the Change og Control being completed, and such notice
must specify the date of termination.
11. NOTICES
11.1. Choice of Address. The Parties choose their addresses where they will accept service of any
notices/documents for all purposes arising from this Agreement (domicilium citandi et executandi) the
addresses as reflected on the Quoation or the Customer Application for Account/COD Form to which
these Standard Terms and Conditions are attached.11.2. Change of Address. Either Party may vary it’s given postal address or other contact details by notifying
the other Party in writing.
11.3. Notices. Any notice given in terms of this Agreement must be in writing and any notice given by any
Party to another (“the addressee”) which:
11.3.1. is delivered by hand will be deemed to have been received by the addressee on the date of
delivery; or
11.3.2. is transmitted by email will be deemed to have been received upon confirmation of receipt (not
automated receipt) thereof by the addressee; or
11.3.3. is posted by pre-paid registered post to the addressee at its chosen postal address will be
deemed to have been received by the addressee on the seventh (7 th) day after the
date of posting.
11.4. Notice Actually Received. Despite the above, written notice or communication actually received by one
of the Parties from the other will be adequate written notice or communication to that Party.
12. DISPUTES AND ARBITRATION
12.1. Save as otherwise provided in this agreement and, in the event that a dispute should arise between the
parties, either party shall be entitled to require, by written notice to the other, that the sispute be
submitted to arbitration in terms of this clause.
12.2. Arbitration shall be held under the provisions of the arbitration laws of the time in force in the Republic
of South Africa, provided that the arbitrator shall be a practising legal practitioner of not less than ten
years standing, agreed upon by the parties, or failing agreement withing 5 (five) days after the date on
which the arbitration is demanded, appointed by the Chairperson of the Legal Practice Council of the
Province having jurisdiction of the the matter.
12.3. The arbitration shall be held at a venue in accordance with formalities and/or procedures determined by
the arbitrator and may be held in an informal and summary manner, on the basis that it shall not be
necessary to observe or carry out the usual formalities and/or procedures, pleadings and/or discovery,
or strict rules of evidence
12.4. The arbitration shall be held as quickly as possible after it is demanded with a view to it’s being
completed within 30 (thirty days) after it has been so demanded.
12.5. Immediately after the arbitrator has agreed upon or nominated in terms of this clause either party shall
be entitled to call upon the arbitrator to fix a date and place when and where the arbitration proceedings
shall be held and settle the procedure and manner in which the arbitration proceedings will be held.
12.6. The arbitrator shall be entitled to:
12.6.1. investigate or cause to be investigated any matter, fact or thing which he considers necessary
or desirable in connection with the dispute and for that purpose shall have the widest powers of
investigating all the books and records of either party to the dispute, and the rigth to take copies
or make extracts therefrom and the right to have them produced and/or delivered at any
reasonable place required by him for the aforesaid purpose; to interview and question under
oath, any representative of either of the parties;
12.6.2. decide the dispute according to what he considers just and equitable in the circumstances;
12.6.3. make such award, including an award for costs, specific performance, and interdict, damages or
a penalty or otherwise as he in his discretion deems fit and appropriate,
provided that should the arbitrator fail to make an award with regard to costs, the costs
shall be borne equally by the parties.12.7. Any award made by the arbitrator:-
12.7.1. shall be in writing and shall include reasons therefore;
12.7.2. shall be final and binding;
12.7.3. will be carried into effect; and
12.7.4. may be made an order of any Court to whose jurisdiction the parties to the dispute are subject.
12.8. This clause:
12.8.1. constitutes an irrevocable consent by the parties to any proceedings in terms hereof and no
party shall be entitled to withdraw therefrom or to claim in any such proceedings
that it is not bound by this clause.
12.8.2. shall not preclude any party from obtaining relief by way of motion proceedings on an urgent
basis from a Court of Competent Jurisdiction pending the decision of the arbitrator.
12.8.3. shall be severable from the rest of this agreement and shall remain effective notwithstanding
that this agreement shall for any reason whatsoever, be terminated.
12.9. Any action or proceedings which the Company may institute against the customer may, at the sole
option of the Company, be instituted against the customer in any magistrate’s court having jurisdiction
over the customer, nothwithstanding that the subject matter of such action or proceedings is beyond or
exceeds the ordinary jurisdiction of such court.
13. FORCE MAJEURE
13.1. Parties not liable for force majeure. Subject to due compliance with clause 13.2 , neither Party will be
liable to the other for any delay or non-performance of its obligations under this Agreement arising from
any cause beyond its reasonable control including without limitation any of the following: act of God,
strikes, lock outs or industrial action, sabotate, terrorism, civil commotion, riot, invasion, war, threat of
or preparation for war, fire, explosion, storm, flood, subsidence, epidemic, pandemic or other natural
physical disaster, impossibility of the use of railways, shipping, aircraft, moter transport or other means
of public or private transport, interruption of electricity supply, any act of policy of any state or
government or other authority having jurisdiction over either Party, economic sanctions, boycott or
embargo.
13.2. Duties in case of force majeure. In the event of either Party being so delayed or prevented from
performing its obligations, such Party must:
13.2.1. give notice in writing of such delay or prevention to the other Party as soon as reasonably
possible, stating the commencement date and extent of such delay or prevention, the cause
thereof and its estimated duration;
13.2.2. use all reasonable endeavours to mitigate the effects of such delay or prevention on the
performance of its obligations under this Agreement; and
13.2.3. resume performance of its obligations as soon as reasonably possible after the removal of the
cause of the delay or prevention.
13.3. Right to terminate. In the event that such delay or prevention continues for more than 10 (ten) Business
Days, the Party whose performance is not delayed or prevented may terminate this Agreement on 10
(ten) Business Days’ written notice to the other Party.14. ASSIGNMENT AND SUBCONTRACTING
14.1. Company May Assign. The Company is permitted to cede or assign all or any of its rights and
obligations under this Agreement without written consent from the Customer.
14.2. Customer to Obtain Written Company Consent. The Customer must obtain the Company’s prior written
consent should it wish to cede or assign all or any of its rights and obligations under this Agreement,
which consent will not be unreasonably withheld.
15. INTERPRETATION OF THE AGREEMENT
15.1. Number, Gender and Status. In this Agreement, unless the context requires otherwise:- words importing
any one gender will include the other gender; the singular will include the plural, and vice versa. A
reference to natural persons will include created entities (corporate or un-incorporate) and vice versa.
Reference to any Party will be interpreted to include reference to their successors or permitted assigns,
unless the contect indicated otherwise.
15.2. Local Definitions and Substantive Provisions. Words and expressions defined in any clause will, for the
purposes of that clause, bear the meanings assigned to such words and expressions in such clause. If it
is clear from the context that the term so defined has application beyond the clause in which it was
defined, it will bear the meaining ascribed to it for all purposes in terms of this Agreement,
notwithstanding that the term has not been defined in a defintions clause. If any provision is a
substantive provision conferring rights or imposing obligations on any party, nothwithstanding that it is
only in a deifintions clause, effect will be given to is as if it were a substantive provision in the body of
the Agreement.
15.3. Clause Headings and References. Clause and sub-clause headings have been inserted for convenience
only and will not be used for nor assist in or affect its interpretation. Unless otherwise stated herein,
references to clauses, sub-clauses, Schedules or paragraphs are references to clauses, sub-clauses,
Schedules or paragraphs of this Agreement, as the case may be.
15.4. Contra Proferentum Excluded. The rule of construction that an agreement will be interpreted against the
party responsible for its drafting or preparation (contra proferentum) will not apply.
15.5. References to this Agreement. Unless otherwise stated in this Agreement, references in this Agreement
to this Agreement or to any other agreement are references to this Agreement or such other agreement
as varied, supplemented, substituted or replaced from time to time.
15.6. Date of Signature. Any reference in this Agreement to “date of signature”, or the like, will be read as
meaning a reference to the date of signature of the last party required to sign an agreement in order for
it to come into existence.
15.7. Calculation of Days. When any number of days is prescribed in this Agreement, it will be reckoned
excluding the first and including the last, unless the last day falls on a Saturday, Sunday or public
holiday in the Republic of South Africa, in which event the last day will be the next Business Day.
15.8. Counterparts. This Agreement may be executed in any number of counterparts (including electronic
counterparts) and all of such counterparts taken together will be deemed to constitute one and the same
instrument.16. GENERAL PROVISIONS APPLICABLE TO THE WHOLE AGREEMENT
16.1. Whole Agreement. This Agreement constitutes the whole of the agreement between the Parties hereto
relating to the subject matter hereof and the Parties will not be bound by any terms, conditions or
representation whether written, oral or by conduct and whether express or tacit not recorded herein.
16.2. No Representations. The Parties warrant that they have not been induced to enter into this Agreement
by any prior representations, warranties or guarantees, whether oral or in writing, except as expressly
contained in this Agreement.
16.3. Variation. No variation, addition to or cancellation of this Agreement and no waiver of any right under
this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the
Parties. For the purposes of this clause “written document” or “writing” shall exclude any written
document in the form, either wholly or partly, of a data message as defined in the Electronic
Communications and Transactions Act 25 of 2002, and “signed” shall mean a signature executed by
hand with a pen and without any electronic process and/or intervention. However, variation may be
facilitated using a data message(s) but must in such event take a similar form to this document and may
not therefore take the form of correspondence itself, whether using e-mai, SMS, instant message or the
like, though variation may be attached to such correspondence.
16.4. Warranty of Authority. The signatories hereto acting in representative capacities warrant that they are
authorised to act in such capacities and accept personal liability under this agreement should they prove
not to be so authorised.
16.5. Continuing Binding Effect. This Agreement shall be binding on and enforceable by the trustees,
permitted assigns, liquidators or other legal successors of the Parties as fully and effectually as if they
had signed this Agreement in the first instance and reference to any Party shall be deemed to include
such party’s trustees, permitted assigns, liquidators or other legal successors, as the case may be.
16.6. Waiver. The failure by any Party to enforce any provision of this Agreement will not affect in any way
that Party’s right to require performance of the provision at any time in the future, nor will the waiver of
any subsequent breach nullify the effectiveness of the provision. No waiver will be effective unless it is
expressly stated in writing and signed by the Party giving it.
16.7. Governing Law and Jurisdiction. This Agreement will be governed and construed according to the laws
of the Republic of South Africa, excluding the United Nations Convention on Contracts for the
International Sale of Goods, as amended, and all disputes, actions and other matters relating thereto will
be determined in accordance with such law. The Parties agree to submit to the non-exclusive jurisdiction
of the High Court of South Africa (Gauteng Division, Pretoria), regarding any and all disputes arising in
connection with this Agreement, subject to clause 13 (Disputes and Arbitration).
16.8. Costs. Each Party will be responsible for its own legal and other costs relating to the negotiation of this
Agreement.
16.9. Severability. If the whole or any part of a provision of the Agreement is void or voidable by either Party
or unenforceable or illegal, the whole or that part (as the case may be) of that provision, must be
severed, and the remainder of the Agreement will have full force and effect, provided such severance
does not alter the nature of the Agreement between the Parties.
16.10. Survival. For the avoidance of doubt, any provision of this Agreement that anticipates any right or duty
extending beyond the termination or expiry of this Agreement will survive the termination or expiry of
this Agreement and continue in full force and effect.
16.11. Consents. Unless specifically otherwise provided, any consent, approval or agreement to be provided by
a Party in terms of this Agreement may not be unreasonably withheld or delayed.