Terms and Conditions – South Africa

  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 fluctuations 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.
  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.
  42. Guarantee: 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).