Terms and Conditions – Africa & Middle East

1. The parties are as defined in the header to these terms and conditions.

2. For the purposes hereof “computer apparatus” means computer and networks hardware, software, drivers and firm ware, “intellectual property” means any intellectual property rights ordinarily recognised by law, including any idea, invention, trade secrets, process, program, data, formula, patent, copyright or trademark right, and “services” means where applicable the services listed in the header hereto.

3. These terms and conditions form part of the header to which it is annexed, and appendix A hereto forms part of the entire agreement (references to the appendix only apply if actually included therein).

4. Where in conflict the terms hereof apply (as opposed to the header and the appendix), and it is spelt out that the explanations (as opposed to specific provisions) provided in the appendix do not represent terms of the agreement nor any form of representation made by the contractor (and the client will have no claims of whatsoever nature against the contractor in respect thereof).

5. Without derogating from the generality of the aforegoing, indications of timelines are estimates only (at no stage is time of the essence).

6. These terms and conditions will either form part of a retainer service agreement (if this option is elected by the client) or of an ad hoc agreement where services are rendered or goods supplied on order.

7. Absent a specific reference otherwise, the provisions hereof apply to both options (references being applied mutatis mutandis).

8. In the absence of a retainer service agreement, each call-out or order will represent an independent contract offer – if accepted by the service contractor a separate agreement comes into being in each instance which, unless otherwise agreed in writing, will be governed by the terms and conditions of this agreement mutatis mutandis.

9. In both instances hardware and software is supplied on order (where applicable accepted quote), payable cash before delivery unless otherwise agreed in writing.

10. Unless otherwise agreed in writing, the hourly rates charged by the service contractor are as set out in the header hereto (and with payment due in the case of retainer option clients within 30 days from invoice, otherwise before delivery).

11. Prices are subject to foreign exchange fluxuations and changes in manufacturing pricing.

12. If the client selects the support services fixed option as set out in the appendix, the contractor will endeavour to achieve the stipulated time per workstation per month as per the appendix, and with additional charges payable as indicated per the appendix.

13. All consultations and advice, other than in respect of the promotion of products, as well as the excepted services set out in the appendix, are charged out at the rates specified in the appendix (or as otherwise agreed in writing).

14. Notwithstanding anything else contained herein, after hours (before 08h00 and after 17h00, South African time UTC+2) reactive support on business days and reactive support on non-business days (Saturdays, Sundays and public holidays) will be charged out at the stipulated rates times 2.

15. Travel time and call out fees are charged out at the rate stipulated in the appendix.

16. The client acknowledges the charges applicable as per the appendix, where the election is for equipment to be collected by the company rather than delivered by the client (in circumstances where this occurs), including Uber charges and the charges of the engineer where applicable.

17. Unless otherwise stipulated in writing, all charges are exclusive of VAT.

18. Unless otherwise agreed in writing, all charges including retainer charges (fixed items) and the hourly rates referred to in the appendix, will escalate at a rate of 8% per annum (with a first escalation 1 year from the date of signature hereof) subject thereto that hardware and software will be sold as per accepted quote (and with the price being as stipulated in the quote).

19. In the event of goods (hardware) found to have been compliant with the Consumer Protection Act at the time of the sale, any defects will be deemed to have arisen through the use of the relevant item by the consumer (and in such event all costs of repair or replacement will be for the account of the consumer, in the case of repairs at the hourly rate stipulated in the appendix hereto).

20. The client acknowledges that it has inspected any fixed assets (including hardware) sold in terms of this agreement (“the fixed assets”), and that the fixed assets are free of any patent defects (and as such the client waives any claims that may arise from patent defects).

21. In any circumstances where the Consumer Protection Act does not apply, goods are sold and services are rendered on an entirely voetstoots basis and without warranty or representation of any nature whatsoever (including in respect of patent and latent defects).

22. The Supplier specifically does not warrant that the goods supplied are suitable for the purposes for which they are required by the Purchaser, whether those purposes are known to the Supplier or not (and the Purchaser specifically confirms and warrants that it has not and will not indicate any particular purpose for which the goods are acquired).

23. To any extent permitted by section 49 of the Consumer Protection Act, the liability of the Supplier is hereby limited on the basis that the Supplier is not liable for any consequential or special loss of whatsoever nature allegedly suffered by the Buyer by virtue of this agreement and/or its implementation, including late delivery or the defectiveness of products as defined (this limitation clause being specifically brought to the attention of the Buyer through same being underlined as envisaged in the said section 49).

24. The client warrants that its annual turnover or asset value (the one or the other) equals or exceeds the amount of R2,000,000.00 – to any extent that this warranty is breached and the Consumer Protection Act applies, the Act will apply but the service contractor may claim damages from the client in respect of a breach of this warranty (i.e. the position with the Act applying compared to what the position would have been had the Act not applied).

25. In regard the client accepts that the contractor would not have entered into this agreement and supplied products or services had the Supplier been aware of the misstatement.

26. In such circumstances (i.e. a breach of this warranty), the client acknowledges that such will constitute criminal conduct in the form of fraud.

Terms and Conditions

These Terms and Conditions (“Agreement”) are entered into between the parties as defined in the header of this Agreement.

Definitions

1. For the purposes of this Agreement:

   – “Computer apparatus” means computer and network hardware, software, drivers, and firmware.

   – “Intellectual property” refers to any intellectual property rights recognized by South African law, including ideas, inventions, trade secrets, processes, programs, data, formulas, patents, copyrights, or trademark rights.

   – “Services” means the services listed in the header of this Agreement.

Incorporation and Appendices

2. These terms and conditions form an integral part of the header to which they are attached, and Appendix A hereto is an integral part of the entire Agreement (references to the appendix only apply if actually included therein).

Priority of Terms

3. In case of any conflict between the terms of this Agreement, the terms herein shall prevail over those in the header and the appendix. Explanations provided in the appendix do not constitute terms of the Agreement, nor do they represent any form of representation made by the contractor. The client shall have no claims against the contractor regarding such explanations.

Timelines

4. Timelines provided are estimates only. Time is not of the essence in this Agreement.

Types of Agreements

5. This Agreement may form part of either a retainer service agreement (if chosen by the client) or an ad hoc agreement for services or goods ordered.

6. Unless specifically mentioned otherwise, the provisions of this Agreement apply to both options, with references applied mutatis mutandis.

Independent Contracts

8. In the absence of a retainer service agreement, each call-out or order represents an independent contract offer. Acceptance by the service contractor creates a separate agreement governed by the terms and conditions herein unless otherwise agreed in writing.

Payment Terms

9. Hardware and software are supplied on order (or as per an accepted quote), and payment is due in cash before delivery, unless otherwise agreed in writing.

10. Unless otherwise agreed in writing, hourly rates charged by the service contractor are as set out in the header, with payment due within 30 days from the invoice date for retainer option clients, and before delivery for others.

11. Prices are subject to foreign exchange fluctuations and changes in manufacturing pricing.

Support Services

12. If the client selects the support services fixed option as described in the appendix, the contractor will strive to meet the stipulated time per workstation per month as per the appendix. Additional charges, as indicated in the appendix, apply.

13. Consultations and advice, except for product promotion and excepted services detailed in the appendix, are charged at the rates specified in the appendix or as otherwise agreed in writing.

After-Hours Support

14. Reactive support on business days before 08h00 and after 17h00 (South African time UTC+2) and on non-business days (Saturdays, Sundays, and public holidays) will be charged at double the stipulated rates.

Travel and Call Out Fees

15. Travel time and call-out fees are charged at the rate specified in the appendix.

16. The client acknowledges and agrees to pay charges related to equipment collection by the company, including Uber charges and engineer charges where applicable.

VAT

17. Unless otherwise stated in writing, all charges are exclusive of VAT.

Price Escalation

18. Unless otherwise agreed in writing, all charges, including retainer charges and hourly rates referred to in the appendix, will escalate at a rate of 8% per annum, with the first escalation one year from the date of this Agreement. Hardware and software will be sold as per the accepted quote, with prices specified therein.

Consumer Protection

19. In case goods (hardware) are compliant with the Consumer Protection Act at the time of sale, any defects will be deemed to have arisen from the consumer’s use. In such cases, all costs of repair or replacement will be borne by the consumer, with repair costs at the hourly rate specified in the appendix.

20. The client acknowledges that it has inspected fixed assets (including hardware) sold under this Agreement and waives any claims arising from patent defects.

21. In cases where the Consumer Protection Act does not apply, goods and services are sold on a voetstoots basis without any warranty or representation, including regarding patent and latent defects.

Limitation of Liability

22. To the extent permitted by section 49 of the Consumer Protection Act, the Supplier’s liability is limited. The Supplier is not liable for any consequential or special loss suffered by the Buyer due to this Agreement or its implementation.

Financial Warranty

24. The client warrants that its annual turnover or asset value equals or exceeds R2,000,000.00. In case of a breach of this warranty when the Consumer Protection Act applies, the Act will apply, but the service contractor may claim damages from the client for such breach.

25. A breach of this warranty constitutes criminal conduct in the form of fraud.

Loan Equipment

27. The service contractor is not obligated to provide loan equipment or other goods to the client under any circumstances.

Independent Contractor

28. The service contractor acts as an independent contractor, and this Agreement does not establish any other legal relationship between the parties, including partnership, agency, employment, or otherwise.

Intellectual Property

29. Each party retains ownership of its own intellectual property.

30. Any information regarding the other party’s intellectual property must be kept confidential and not disclosed to any third party, unless in the public domain, required by court order, or necessary for executing this Agreement.

Staff Employment

31. Neither party shall employ or utilize any staff or employees of the other as an employee, consultant, advisor, or in any other capacity for the duration of this contract and for 12 months after termination, unless by written agreement with the other party.

Ownership of Goods

32. Ownership of all computer apparatus and other goods sold by the service contractor remains vested in the service contractor until full payment of the purchase price is received.

Retainer Agreement

33. For a retainer agreement, this Agreement commences on signature hereof and continues indefinitely, subject to either party’s right to give two calendar months written notice of termination. If there is a fixed initial period, this notice must be given to terminate at the end of the initial period.

Unavoidable Delays

34. The service contractor is not obliged to perform in the event of unavoidable delays, including Acts of God. However, the service provider shall give timely notice of such unavoidable delays as envisaged in section 54(1)(a) of the Consumer Protection Act.

Time of the Essence

35. Generally, time is not of the essence for performance by the service contractor.

Default and Credit Listing

36. If the client defaults on its obligations, the service contractor may list the client as a bad payer with any credit bureau or other credit institution. The client is liable for any legal costs incurred by the service provider in pursuing its claims.

Risk

37. Risk, where equipment is sold, passes to the client upon delivery.

Domicilium Citandi et Executandi

38. The client designates the address set out in the header as its domicilium citandi et executandi for all communication and legal notices.

Jurisdiction

39. The parties consent to the jurisdiction of the Magistrate’s Court. However, either party retains the right to

27. Under no circumstances will the service contractor be obliged to provide loan equipment or other goods to the client.

28. The service contractor acts as an independent contractor and this agreement does not constitute any other legal relationship between the parties, including that of partnership, agency, employment or otherwise.

29. Each party remains owner of its own intellectual property.

30. Should either party gain information relating to the others intellectual property, such information will be kept confidential and will not be disclosed to any third party (unless it is in the public domain, unless it is to be disclosed by court order, and/or unless it is necessary to do so for the purposes of executing this agreement).

31. Neither the service contractor nor the client shall for the duration of this contract and for 12 months after termination employ or utilize any staff or employees of the other as either an employee or consultant or advisor or in any other capacity whatsoever, unless by written agreement with the other party.

32. Ownership in all computer apparatus and other goods sold by the service contractor remains vested in the service contractor until full payment of the purchase price has been received.

33. For a retainer agreement where applicable, this agreement commences on signature hereof and continues indefinitely (unless otherwise stipulated in the header or agreed in writing) subject to the right of either party to give 2 calendar months written notice of termination (if there is a fixed initial period, this notice must be given with effect the end of the initial period).

34. The service contractor is not obliged to perform in the event of unavoidable delays (including through Acts of God), subject thereto that the service provider will give timely notice of such unavoidable delay as envisaged in section 54(1)(a) of the Consumer Protection Act.

35. Generally time is not of the essence for performance by the service contractor.

36. The client agrees that, should it default on its obligations towards the service contractor, the service contractor may list the client as a bad payer with any credit bureau or other credit institution (and the client will be liable for any legal costs incurred by the service provider in pursuing its claims, on the scale as between attorney and client).

37. Risk (where equipment is sold) passes to the client on delivery.

38. The client chooses as its domicilium citandi et executandi the address set out in the header hereto.

39. The parties consent to the jurisdiction of the Magistrate’s Court, subject thereto that neither party is deprived of the election to sue in the High Court should it so wish.

40. This (i.e. these terms and conditions read with the header and the appendix) is the whole agreement between the parties and no variation, novation or cancellation hereof (nor any waiver) will have any force or effect unless reduced to writing and signed by the parties.

41. No indulgence or relaxation on the part of the service contractor will represent a waiver of rights.

Guarantee

42. The individual/s signing this document on behalf of the customer, guarantee/s payment by the customer of all moneys due by it to the service provider in terms hereof (on due date).