These terms are the general terms of the relationship between us and you. The terms cover any transactions where we provide goods to you. The commercial terms of any transaction will be contained in an order that will incorporate these terms. The order will prevail if there is a conflict of meaning. Nothing in the terms obligates any party to enter into any orders.
These terms cover any transactions where we provide goods to you.
In the agreement:
additional fee means a charge you must pay us for the provision of any goods outside of an order, which charge must be made at our then current standard prices and rates, unless otherwise agreed in writing between the parties;
administrator means an authorised user that you employ who is authorised to provide, manage and administer certain services;
AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead);
agreement means the agreement between us and you, consisting of the terms and any orders the parties enter into;
authorised user means you or a user in your employ where you are a juristic person, who has been assigned credentials;
business day means any day other than a Saturday, a Sunday, or a holiday (including a public or bank holiday) in the jurisdiction where our entity that entered into the relevant order is organised;
business hours means our normal business hours on business days;
calendar day means a day counted from midnight to midnight. It includes all days of the month, including weekends (Saturday and Sunday), and public holidays;
contract year means, in respect of an order, each successive 12 calendar month period during the term of the order, calculated from the effective date;
credentials means a unique username and password that has been assigned to an authorised user;
dashboard means the section on the website accessible by you through a web browser that allows you to control certain aspects of the services;
effective date means in respect of each order, the effective date stipulated in each order, in the absence of which it will be the date the order is accepted by us;
existing material means any code, forms, algorithms, or materials developed by or for either party independently and outside of the agreement and provided during the course of the agreement;
fees means the fees, charges, or purchase consideration that you will pay to us in respect of goods we provide under orders;
goods means any goods that we supply to you, under orders;
order means a goods order agreed to and signed by both the parties describing the specific goods that we will provide to you;
our technology means any technology that we have created, acquired or otherwise have rights in and may, in connection with the performance of our obligations under the agreement, employ, provide, modify, create or otherwise acquire rights in and includes any:
personnel means any representative, including any director, employee, agent, affiliate, consultant, or contractor;
related and related persons means natural and juristic persons who are connected to one another in the manner contemplated in sections 2 and 3 of the Companies Act 71 of 2008;
sign means the handwritten signature, an advanced electronic signature, or an electronic signature that the parties agree to use, of each of our duly authorised representatives;
signature date means the date of signature by the party signing last;
tax means any:
terms means the terms, consisting of:
third party contractor means any contractor, supplier, vendor, or licensor of a part of the goods, which is not a party to the agreement;
we, us, or our means our organisation, the vendor that enters into an order and, if specified in the order, those related to it;
writing means the reproduction of information or data in physical form (includes handwritten documents, hard copy printouts and fax transmissions) or any mode of reproducing information or data in electronic form that the parties agree to use (like pdf), but excludes information or data in the form of email;
you or your means the customer that enters into an order and, if specified in the order, those related to it;
your data means your data (including information about an identifiable person) that:
We are the vendor under these terms. You are the customer under these terms.
Words defined (or assigned a meaning) in an order will have that meaning in the terms, unless the context clearly indicates otherwise.
All headings are inserted for reference purposes only and must not affect the interpretation of the agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in the agreement, when any number of days is prescribed in the agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.
The terms commence on acceptance and continue until terminated.
These terms commence when you accept them and continue until terminated.
You place orders with us on the following basis.
You represent and warrant that you (and any person who places an order):
You promise that you have the legal capacity to enter into the transaction.
The marketing of the goods by us is merely an invitation to do business or for you to make an offer to procure goods. The parties only conclude a valid and binding order when we accept the offer made by you. Unless otherwise agreed in writing or we accept an offer earlier, we only accept an offer relating to goods, when we dispatch the goods. If we only ship part of the goods relating to an offer, we only accept that portion of the offer. We may accept or reject any offer. If we do not accept any offer, then we will refund any monies already paid by you.
We only conclude an agreement when we dispatch our goods to you.
Unless otherwise agreed, we may cancel any order at any time in our absolute discretion. We will refund any monies already paid by you if we do.
We may cancel any order, but we will refund any money you have paid if we do.
Despite our best efforts, the stated fees may be incorrect. We will confirm the fees for any goods when we accept your offer.
The parties conclude any agreement between each other at the time when our duly authorised representative accepts the relevant offer and at the place where you have your head office. We do not need to communicate the acceptance of the offer to you.
We conclude an agreement where you are domiciled.
The terms in effect at the time you make an offer will govern the order. Each order will create a separate agreement. Despite that, we may consider the breach of any one order to constitute a breach of any or all orders.
Each order is a separate agreement, but you breach all of them if you breach one.
We may not always have the goods on which you make offers in stock. If the goods are not in stock, you may cancel the offer or make another offer on the part of the goods that are in stock.
We sell the goods to you who purchases them on the terms of the agreement.
We sell the goods to you on the following basis.
You may only make offers for goods for delivery to the countries specified by us. If your delivery or billing address is not amongst those specified, you must not make an offer. We are only able to sell into the countries specified, and we are only able to deliver to those countries.
Unless otherwise agreed in an order the goods will be supplied on the following basis:
You will bear the cost and we will choose the way of packaging and delivering the goods unless agreed otherwise.
Once we receive an offer, we will endeavour to dispatch the goods as soon as reasonably practicable (which may be longer than 30 calendar days) to the address specified in the offer. We will try to adhere to the estimated delivery dates but accept no liability for failing to do so. You may not withdraw any offer due to a delay in delivery.
We will do our best to dispatch the goods as soon as possible after you have placed an order, but we are not liable and you may not cancel an order if we do not do so timeously.
All risk of loss or damage to the goods will pass to you upon physical delivery of the goods to your delivery address. Ownership in the goods will only pass to you upon full payment of the fees.
Risks related to the goods pass to you on delivery, but ownership in the goods only passes to you on payment of the fees in full.
The goods will be subject to any warranty indicated in the description of the goods appearing on the accompanying documentation or packaging. Please review those documents carefully. You will have the same rights against us as we have against the supplier regards defects in the goods, the intention being that our liability to you will be co-extensive with the right of recourse we have against the supplier. We will provide a copy of any warranty on request. To the extent legally possible, we assign to you the benefit of any supplier warranties that a supplier may give to us regards the goods. You may not waive any of our common law rights as against the supplier.
You have the same rights against us as we have against our suppliers in terms of any warranty attached to the goods or imposed by law.
None of our sales representatives have the authority to bind us and no representation, warranty or any other statements made or given by any of our sales representatives will be binding on us, unless given in writing and signed by our duly authorised representative.
If you wish to resell or export any goods, you must obtain all required consents or licences under all applicable laws and regulations that may affect or regulate such resale or export.
You own all your data. When you enter your data into the system, you give us a licence to use it to provide the goods. We are not responsible for any of your data stored on our system.
We are not responsible for any of your data stored on our system.
We are able to provide the website in multiple locations that are located in different countries. Your data will remain in whatever location you place it, unless we have to transfer it across a country border to enable us to comply with our obligations under the agreement.
We are responsible for complying with our obligations and you are responsible for complying with your obligations under applicable laws governing your data. The parties both acknowledge that they are not investigating the steps the other is taking to comply with any applicable privacy and protection of personal data laws.
You remain the responsible party for determining the purpose and means of our processing of your data, including that processing will not place us in breach of any laws.
You consent to us transferring your data across a country border to enable us to comply with our obligations under the agreement. You are solely responsible for determining that any transfer of your data across a country border complies with the applicable laws.
You agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to you failing to comply with your obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own client basis.
On a party’s reasonable written request, the other party will provide the requesting party with the information that it has regarding your data and its processing that is necessary to enable the requesting party to comply with its obligations under this clause and the applicable laws. The requesting party will reimburse the other party for its reasonable charges for its assistance.
Both of the parties will take reasonable precautions (having regard to the nature of each of their obligations under the agreement), to preserve the integrity of your data and prevent any unauthorised access, corruption or loss of your data.
You agree that our records are prima facie evidence of the goods supplied to you.
On termination of any order, each party will return to the other party in the form in which it was received all of the other party’s data or information provided to the party for the purpose of the performance of the relevant order.
You own all your data. We do not own your data or other third party content used as part of the website. All title, ownership rights and intellectual property rights in and to the content submitted through the website belong to you or the applicable content owner and may be protected by applicable copyright or other law.
When you upload your data to the website, you give us a worldwide license to use, host and store your data, solely for purposes of providing the services.
We have created, acquired or otherwise obtained rights in our technology and despite anything contained in the agreement, we will own all right, title, and interest in our technology.
We may own intellectual property rights in our goods.
If we utilise any of our technology in connection with our performance under an order, our technology will remain our property and you will not acquire any right or interest in it.
You may not use our proprietary rights without our permission.
Our logo and sub-logos, marks, and trade names are our trade marks and no person may use them without permission. Any other trademark or trade name that may appear on our marketing material is the property of its respective owner.
Except as expressly permitted under the agreement, the goods may not be reverse engineered, copied, reproduced or distributed.
All violations of proprietary rights or the agreement will be prosecuted to the fullest extent permissible under applicable law.
We may prosecute you for any violations of our proprietary rights.
Each party must keep confidential any information it receives from the other party or under this agreement.
The party that receives confidential information agrees to protect the interests of the party it is from, and will:
At the end of an agreement, the parties will give back to the other all originals and copies of confidential information of the other that they have. If the other agrees, they may destroy the confidential information they have.
These responsibilities will not apply to any information that:
You indemnify us against any loss or damage that we may suffer because of a breach of this clause by you or your employees or agents.
This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.
We warrant that:
You use our goods at your sole responsibility and risk. We provide the goods on an “as is” and “as available” basis. Except for the warranties given in this agreement and to the extent allowed by law, we expressly disclaim all representations, warranties, or conditions of any kind, whether express or implied, including any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement.
We disclaim all warranties to the extent allowed by applicable law.
Despite any warranty we give, we will not be liable regards any defect arising from negligence, failure to follow our instructions (whether oral or in writing) or misuse.
We are not liable for any defect that you cause.
You warrant that:
and you agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim for damages by any third party as a result of the breach of these warranties, including all legal costs. If permissible under applicable law, legal costs will be on an attorney and own client basis.
You will be liable for and pay the fees specified in the order and any additional fees promptly on the due date, without any deduction, set off, or demand and free of exchange in the currency specified in the order.
You will pay us the fees on the due date.
You must make payment in the manner specified.
We may appropriate any payment received from you towards the satisfaction of any of your indebtedness to us under the agreement.
We understand that you may want to take the law into your own hands in the event of a dispute, but you may not withhold payment of any amount due to us for any reason.
You may not withhold payment of any amount due to us for any reason.
All fees exclude any tax, which will be payable where applicable by you in addition to the fees.
You and any signatory consent and agree that we may provide any registered credit bureau with information about the payment of amounts.
If we remove any goods that we supplied, you will pay us the costs that we incurred (including redeployment, travel and associated expenses) in remobilising our employees affected by the agreement and re-installing the removed goods.
We will defend you against any claims made by an unaffiliated third party that any goods infringe its patent, design, copyright, or trade mark and will pay the amount of any resulting adverse final judgement (or settlement to which we consent). We will reimburse you with all costs you reasonably incurred in connection with assisting us with the defence of the action. You will promptly notify us of the claim in writing and we will have sole control over its defence or settlement.
If any third party succeeds in its claim for the infringement of any intellectual property rights, we may within 30 calendar days of the infringing item having been found to so infringe:
We will not be liable for any claim that arises out of goods or services you select and acquire from third parties.
This clause will survive termination of the agreement.
To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, our maximum liability to you for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by you to us for the goods related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.
We are only liable to you for any direct damages that the goods may cause up to the total amount of fees that you have paid us for them.
To the extent permitted by applicable law, in no event will we (or our personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the agreement.
We are not liable for any other losses that the goods may cause you.
The limitation contained in this clause will not apply to any breach by a party of the other party’s proprietary or confidential information or intellectual property or damages arising from a party’s negligence.
We will not be liable for any loss or damage suffered by you arising out of or in connection with any breach of the agreement by you or any act, misrepresentation, error or omission made by or on behalf of you or your personnel.
We are not liable for any other deliverable, including website, goods, or service provided by any third party.
We agree to indemnify, defend, and hold you (and your personnel) harmless against any and all:
Without limiting liability, neither party will be liable to the other for any loss that it may suffer as a result of theft, fraud, or other criminal act by a party or its personnel.
If a party:
Then the other party may, without prejudice to any of its rights:
Please don’t breach your obligations under this agreement. If you do, we have certain rights against you in terms of the law.
We may immediately terminate this agreement at any time by giving you notice in writing if:
We may need to terminate this agreement immediately under certain unlikely circumstances, including if we discontinue the goods, believe providing the goods could burden or pose a risk to us, have to terminate to comply with a law, or providing the goods has become impractical. If we need to terminate, we will give you as much notice as possible in writing.
On termination, cancellation, or expiry of this agreement:
The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.
On termination, cancellation, or expiry this agreement, all amounts due to us for goods delivered before termination will become due and payable even if we have not yet invoiced them. You may not withhold the amounts for any reason, unless the arbitrator directs otherwise.
Following termination, you may take advantage of any post-termination assistance that we may generally make available (such as data retrieval arrangements). We may provide you with post-termination assistance, but we will not be under an obligation to do so. Your right to take advantage of any post termination assistance will depend on your acceptance of and compliance with any additional fees and terms that we may impose for such assistance.
The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.
There will be a dispute about or from this agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:
We want to avoid disputes about this agreement and resolve them as quickly as possible. But if there is one, either party may inform the other of it in writing. The parties must first try to negotiate to end the dispute, then enter into mediation if negotiation fails, and finally go to arbitration if mediation fails.
Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days.
If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Johannesburg, Cape Town, or Durban (whichever city is closest to our head office at the time). The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.
The parties may agree otherwise in an order.
The parties may agree in writing to change the periods for negotiation or mediation.
This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).
This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number given in the relevant order.
We want to communicate with you effectively about this agreement. For this reason, the parties will send all notices to each others’ email addresses or another agreed method.
Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this agreement.
The parties choose their respective street addresses as their service addresses for all legal documents.
Each party may change the addresses or numbers in the specific terms to any other addresses or numbers by writing to the other party 14 days before the change.
The parties may change either address on 14 calendar days written notice to the other.
Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery.
If a party actually receives any notice or other communication, this will be good enough.
No party will be responsible for any breach of this agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.
Things may happen that prevent you or us from complying with each of our obligations under this agreement. Neither party is responsible for breach of this agreement caused by circumstances beyond its control.
If there is an event of force majeure, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.
If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 60 days because of force majeure, the other party may cancel this agreement by written notice.
The other party may cancel the agreement on written notice to the other if the circumstances persist for more than 60 calendar days.
We may have discussions with each other relating to this agreement, but the agreement is the entire agreement between the parties on the subject. It does not include anything outside of the agreement.
The agreement is the entire agreement between the parties on the subject.
We may change the terms at any time and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on our website or by email. If you do not agree with the change you must stop using the services. If you continue to use the services following notification of a change to the terms, the changed terms will apply to you and you will be deemed to have accepted such terms.
If we change this agreement by updating this web page, any changes will only apply to future orders.
Any favour we may allow you will not affect or substitute any of our rights against you.
If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this agreement if it does not change its purpose.
South African law governs this agreement.
You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.
You consent to the jurisdiction of the Magistrate’s Court.
We may provide any goods or services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.
Each party is responsible for its own costs of drafting and negotiating this agreement.
A party will not make any announcement or statement to the press about this agreement, without first getting written permission from the other party.