STANDARD TERMS AND CONDITIONS OF BUSINESS
SCOPE OF APPLICATION
- Unless otherwise agreed in writing, all transactions (including online transactions), purchase orders, quotations, offers to contract and contracts (whether written or oral) for the supply of Goods and/or the provision of Services by the Company, shall be subject to the standard terms and conditions contained in these Terms. All Goods supplied to and Services provided to the Customer, both before and after signature and acceptance of these Terms by the Customer, shall be governed by these Terms.
- These Terms apply between the Company and its Customers, regardless of the Goods supplied or the Services provided.
- These Terms and any other official documents of the Company, which constitute an offer to contract, shall once accepted, constitute the entire agreement between the Parties in respect of the subject matter hereof and supersedes any other discussions, agreements and/or understandings regarding the subject matter hereof. In the event of any inconsistency between these Terms and any other official documents, as the case may be, these Terms shall take precedence.
- To the extent that the provision of the Services and/or the supply of the Goods by the Company are governed by any South African legislation or regulated by the Consumer Protection Act and/or the National Credit Act, these Terms do not purport to override the aforementioned insofar as they are not allowed to be amended.
DEFINITIONS AND INTERPRETATION
For purposes of these Terms, unless the context requires otherwise:
- Business Day means a day other than a Saturday, a Sunday or an official public holiday;
- Companies Act means the Companies Act, 71 of 2008;
- Company means Route Management Proprietary Limited, registration number 2001/020040/07, its holding company and each of its subsidiaries and/or affiliates (as applicable);
- Consideration means the consideration payable by the Customer pursuant to the sale of Goods or provision of Services;
- Consumer Protection Act means the Consumer Protection Act, 68 of 2008;
- Customer means the party with whom the Company engages in respect of all transactions (including online transactions), quotations, offers to contract and contracts (whether written or oral) for the supply of the Goods and/or provision of Services;
- a vehicle which is not self-propelled and which is designed or adapted to be drawn by a motor vehicle;
- any rigid vehicle body;
- construction equipment and machinery;
- Goods shall mean all goods which may include but is not limited to Equipment, parts and/or components;
- Insolvency Act means the Insolvency Act, 24 of 1936;
Insolvency Event means any of the following:
- Any act of insolvency by the Customer as defined in section 8 of the Insolvency Act;
- Any decision by the Customer to file or the filing of any application or action, whether by the Customer or any other person for the liquidation, sequestration, administration, voluntary surrender, placing under business rescue, debt review or any other form of judicial management;
- The convening of a meeting of directors or shareholders to consider the passing of a decision entailing any of the steps envisaged in Clause 22.214.171.124 above.
- National Credit Act means the National Credit Act, 34 of 2005;
- Parties means the Company and the Customer;
- Personal Information means “personal information” as defined in section 1 of POPIA but excluding “special personal information” as defined in section 26 of POPIA;
- POPIA means the Protection of Personal Information Act, 4 of 2013;
- Process and Processing shall bear the same meaning as “processing” as defined in section 1 of POPIA;
- Services means any of the services provided by the Company, including, but not limited to Breakdown -, Maintenance -, Refurbishment - and Repair Services; and
- Terms means these standard terms and conditions.
Unless expressly provided to the contrary or inconsistent with the context, a reference in these Terms to:
- a person includes any natural person, firm, company, corporation, body corporate, juristic person, unincorporated association, government, state or agency of a state or any association, trust, partnership, syndicate, consortium, joint venture, charity or other entity (whether or not having separate legal personality);
- any one gender, whether masculine, feminine or neuter, includes the other two;
- the singular includes the plural and vice versa;
- a word or expression given a particular meaning includes cognate words or expressions;
- a statutory provision includes any subordinate legislation made from time to time under such provision and a reference to a statutory provision includes that provision as from time to time amended, substituted or re-enacted as far as such amendment, substitution or re-enactment applies, or is capable of applying, to this agreement or any transaction entered into between the Parties;
- The eiusdem generis rule does not apply so that whenever specific words of a particular class are used in conjunction with general words then the specific words must not limit the scope of the general words. If any provision is followed by the word including and specific examples, such examples must not be construed so as to limit the general ambit of the provision concerned; and
- All the headings and sub-headings in these Terms are for convenience and reference only and shall be ignored for the purposes of interpreting it.
- If a definition confers substantive rights or imposes substantive obligations on a Party, such rights and obligations shall be given effect to and are enforceable as substantive provisions of this agreement, notwithstanding that they are contained in that definition.
- No provision in the agreement shall be interpreted for or against either Party because that party or its legal counsel drafted such provision and the contra proferentem rule of construction shall have no application to the construction, interpretation or adjudication of these Terms.
- Unless expressly provided to the contrary or inconsistent with the context, a reference in these Terms to:
- All quotations submitted by the Company to the Customer shall remain open for acceptance only for a period of 30 (thirty) days unless otherwise stipulated in the quotation.
- Notwithstanding acceptance by the Customer of a quotation, performance of the Company's obligations thereunder shall be subject to clause 5.3.
- Notwithstanding the provisions of clause 3.1, the Company reserves its right to revoke a quotation at any time prior to the expiry of the 30 (thirty) days and acceptance of the quotation.
If the Company deems it necessary to strip and/or dismantle any Goods in respect of which Services are to be performed in order to prepare a quotation for the Customer:
- the Company may dismantle the Goods to the extent which the Company deems necessary in order to prepare the quotation; and
- the Customer must pay, in advance, a fee to the Company for dismantling the Goods, which fee is determined in accordance with the Company’s prescribed rates for such Services on the date on which the Goods are dismantled.
- The Parties agree that the Company reserves the right to charge a 10% (ten percent) handling fee on all Goods returned against orders that were correctly executed.
- Should the Company grant the Customer any discount in respect of the sale of any Goods and/or the rendering of any Services, such discount shall be permitted only if the Customer makes payment strictly in accordance with the Terms of the agreement and such discount shall be limited to the specific Goods sold and/or Services provided.
- Each quotation and acceptance shall constitute a separate agreement between the Parties subject to this agreement and any other specific written terms of the Company, if applicable. Any terms and conditions of the Customer shall not be binding on the Company, even if not expressly rejected.
The Consideration payable by the Customer for any Goods sold or Services provided shall be as follows:
- in the event of a quotation by the Company and accepted by the Customer such quoted tariff and or price, subject thereto however that in any instance of a statutory increase or adverse fluctuations in the rate of exchange prior to either the delivery and or supply of the Goods or the rendering of Services, which may have a material direct or indirect impact on the cost of the Goods and or Services, the Company reserves its rights to furnish the Customer with an adjusted quotation proportionate to any such increase incurred; and
- in the event of no quotation, the Company's prevailing list price, in the absence of which, the fair and reasonable price for the Goods and/or Services as determined by the Company in its absolute discretion.
- Should any Services be provided by the Company outside normal working hours at the request of the Customer, the Company shall be entitled to recover additional compensation for such Services calculated at the usual rate charged by the Company for overtime.
- The Consideration payable by the Customer for any Goods sold or Services provided shall be as follows:
PAYMENTS AND CREDIT
- The Customer may apply for credit with the Company by completing and submitting the prescribed application form and required supporting documents.
- The Company reserves its right to reject any credit application which does not meet its approval criteria and may refuse to sell and deliver any Goods and/or provide any Services and the Customer shall have no claim whatsoever against the Company for such refusal.
- The Company reserves its right and shall be entitled at any time, in its absolute discretion and without prior notice thereof to the Customer, to reduce the credit limit which may have been granted to the Customer, or to refuse the further sale of Goods or the provision of Services on credit.
- The Customer shall on demand provide the Company with information which may including but shall not be limited to FICA documents, financial and or management statements.
- Payment of the Consideration in respect of South African Costumers, shall be effected in South African Rand and in the event of non-resident Customers shall be effected in such applicable quoted currency.
- All payments to the Company shall be effected in cash or by means of card-based payment at the Company's business premises, alternatively by electronic funds transfer into the bank account specified on the Company’s invoice issued to the Customer in this regard.
Payment of the Consideration in respect of:
- cash Customers, on delivery of the Goods or upon provision of the Services; or
- Customers who have been granted Credit by the Company within 30 (thirty) days, (or such other period as the Company may have advised the Customer of in writing) after the end of the month in which the Company has sold and delivered the Goods and/or provided the Services.
- The Customer is not permitted, under any circumstances whatsoever, to (i) apply set-off in respect of any amount payable by the Customer to the Company against any claim that the Customer may have against the Company; (ii) to make any deductions whatsoever from any amount due by the Customer to the Company; or (iii) withhold, for any reason whatsoever, any payment due and owing to the Company.
- All and any business between the Company and the Customer to which these Terms apply, shall at all times be regarded as an agreement between the specific entity or entities actually doing business with the Customer and not an agreement collectively with all the entities contemplated in the definition of the Company.
- Should any amount not be paid by the Customer on the due date as provided herein, then all amounts owed to the Company shall become immediately due and payable and the Customer shall be liable to pay interest in respect of amounts unpaid as at the due date, compounded monthly at the rate of 2% (two percent) until date of payment in full.
- The Customer shall, in addition to any other claims by the Company in terms of this agreement, be liable towards the Company for penalties which may include standing fees at the Company’s prescribed rate from time to time in respect of Goods sold or Services provided in relation to Equipment by the Company effective as from the 8th (eight) day following such date as upon which the Company has informed the Customer of the availability of such Equipment.
- Notwithstanding the provisions of clause 5.1, the penalties referred to in clause 5.11, shall be paid by the Customer prior to delivery or collection of the relevant Equipment, or alternatively and at the discretion of the Company be debited against the Customer's account.
- In the event of any notification of change in banking details of the Company, due to the risk of fraud, the Customer shall verify that the account into which payment will be made is indeed the Company’s legitimate bank account.
- Unless agreed otherwise by the Parties in writing, delivery of all Equipment shall be Ex Works (The premises of the Company as set out in the Company’s quotation issued to the Customer) Incoterms© 2020 (as such term is defined in the International Rules for the Interpretation of Trade Terms of the International Chamber of Commerce) (the “Delivery Address”).
In the case of:
- a sale of Equipment, the Customer shall collect the Equipment from the Delivery Address within 7 (seven) days from the date on which the Company notifies the Customer in writing that such Equipment is available for collection;
- a sale of any other Goods, the Customer shall collect the Goods from the Delivery Address within 7 (seven) days from the date on which the Company notifies the Customer in writing that such Goods are available for collection;
- any Services provided by the Company in respect of any Goods, the Customer shall collect the Goods from the Delivery Address within 7 (seven) days from the date on which the Company notifies the Customer in writing that such Goods are available for collection; (the “Delivery Date”).
- Unless otherwise agreed to in writing, the Customer shall be responsible for the collection of the Goods from the Delivery Address.
- The Company is not obliged to provide any Goods or Services and/or return any Goods to the Customer until the Consideration, together with interest and penalties, if applicable, is paid in full or secured to the satisfaction of the Company.
Delivery is completed when the Goods are made available to the Customer for collection on the Delivery Date and at the Delivery Address (“Delivery”). The Customer shall take delivery of the Goods on the Delivery Date. If the Customer fails to do so, then:
- with effect from 16:30 pm on the Delivery Date, all risk of loss of, or damage to or caused by the Goods shall pass from the Company to the Customer; and
- the Customer shall pay to the Company, on demand, the Consideration as well as all reasonable costs (including storage costs) which the Company incurs as a result of the Customers failure to take Delivery.
- The Customer shall carry the onus to ensure the presence of an authorised representative at the Delivery Address on the Delivery Date. The Company has no obligation to verify such authorisation and has the right to assume that any such person taking delivery is duly authorised thereto.
- Acceptance of Delivery by such representative shall constitute prima facie-proof that the Customer has examined the Goods and has accepted it in good condition, complete and in accordance with the agreed specifications.
- The Company shall have the right to make any changes to the Delivery of Goods and or provision of Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Goods or Services and the Company shall notify the Customer in any such event.
The Company may, at the Customer’s request, appoint a carrier on behalf of the Customer to transport the Goods on the Customer’s behalf to the destination specified by the Customer in which event the following provisions shall apply:
- the Company is hereby authorised by the Customer to appoint a carrier on such terms and conditions as the Company deems fit;
- whenever the Goods are to be delivered within the borders of the Republic of South Africa, the carrier appointed by the Company shall be deemed to be the Customer’s agent;
- whenever the Goods to be delivered are subject to a zero-rated VAT export transaction, such carrier to be appointed by the Company shall be deemed to be the Company’s agent in all material aspects thereof;
- the Goods are loaded and transported at the Customer’s risk unless specifically otherwise agreed in writing; and
- the Customer is responsible, whether directly or indirectly, for paying the carrier fees, including relevant insurance cost.
Despite any other provision of these Terms, the Company’s obligation to deliver the Goods are subject to the following conditions:
- where the Company manufactures the Goods, or any part thereof, the Company’s ability to timeously source from its suppliers all required materials, components and supplies;
- where the Goods or any part thereof are purchased by the Company, the timeous receipt by the Company from its suppliers of the Goods or any components thereof; and
- the timeous receipt by the Company of complete instructions by the Customer.
The Customer shall give written notice to the Company within 7 (seven) days of Delivery:
- of any alleged shortage; and/or
- of any alleged failure to comply with the agreed specifications.
OWNERSHIP AND RISK
- Ownership in respect of all Goods sold and delivered shall remain vested in the Company and shall only pass to the Customer upon payment of the Consideration in full.
- The risk in respect of any Goods sold or in respect of which any Services have been provided shall pass to the Customer on delivery and/or deemed delivery as set out in clause 6.
EXCLUSION OF LIABILITY AND INDEMNITY
Should any Goods, or any portion thereof, be supplied in accordance with instructions, specifications and/or dimensions dictated by the Customer, or from the Company following such instructions, specifications and/or dimensions, the Customer shall have no claim whatsoever against the Company:
- should the Goods so supplied not be suitable for the purpose required by the Customer, whether or not such purpose was made known to the Company; and/or
- for any loss or damage which the Customer may suffer as a result of any error, discrepancy or deficiency in such instructions, specifications and/or dimensions.
- The Customer hereby indemnifies the Company against any and all intellectual property rights infringement claims resulting from the manufacture and/or supply of the Goods, or any part thereof in accordance with instructions, specifications and/or dimensions dictated by the Customer.
- Unless specifically otherwise stated in writing under the signature of a director of the Company, any date mentioned in any quotation, invoice or other document for the delivery of any Goods and/or provision of any Services shall be an approximate date. The Customer shall have no claim whatsoever against the Company in respect of or as a result of the failure of the Company to deliver the Goods and/or provide the Services on or prior to such specified date. Furthermore, the Customer shall not be entitled to cancel any agreement or order, nor be entitled to institute action for specific performance against the Company unless the Customer has after the specified date by written notice afforded the Company 30 (thirty) days within which to deliver the Goods and/or to provide the Services in question.
- The Company shall not under any circumstances whatsoever be liable towards the Customer for any indirect or consequential damages of any nature, or for any loss of profits or special damages whether or not the Parties so intended, which the Customer may suffer or sustain as a result of the failure of the Company to comply with its contractual obligations and/or pertaining to the delivery of any Goods and/or the provision of any Services.
- The Customer shall not, under any circumstances whatsoever, have any claim against the Company for any alleged shortage or in respect of non-compliance with specifications unless the written notice as envisaged in Clause 6.11 was delivered to the Company.
- Should any Goods, or any portion thereof, be supplied in accordance with instructions, specifications and/or dimensions dictated by the Customer, or from the Company following such instructions, specifications and/or dimensions, the Customer shall have no claim whatsoever against the Company:
- PERMITS, CONSENTS AND APPROVALS If any permit, consent or approval, including regulatory approval, is required in relation to the supply of any Goods and/or provision of any Services under any applicable law, then the Customer shall obtain such permit, consent or approval, unless otherwise agreed between the Parties. Any failure by the Customer to obtain such permit, consent or approval shall not affect the existence or validity of the agreement to supply Goods or Services.
WARRANTIES AND GUARANTEES BY THE COMPANY
The Company guarantees expressly, subject to the undermentioned limitations and exclusions, that:
in respect of all Goods newly manufactured by the Company, it shall be free from any defects as a result of defective material and/or poor workmanship for a period of 1 (one) year reckoned from Delivery Date, subject thereto that in the case of Equipment, the Customer submits the Equipment to the Company at any of its service branches for service:
- at the expense of the Company, between 5,000km (five thousand kilometres) and 7,000km (seven thousand kilometres) or within 14 (fourteen) days, whichever occurs first;
- at the expense of the Customer, by 30,000km (thirty thousand kilometres) or 3 (three) months after the preceding service, whichever occurs first; and
- at the expense of the Customer, at service intervals of 30,000km (thirty thousand kilometres) or 3 (three) months following any preceding service, whichever occurs first for the entire duration of the guarantee period set out in clause 10.1.1;
- all electrical -, hydraulic - and air systems and/or - components, flooring, interior linings, locks, latches, powder coated finishes, hardware, fasteners, customised accessories, water sealants, doors, roofing materials subject to same being installed and/or fitted by the Company, shall be free from any defects as a result of defective material and/or poor workmanship for a period of 6 (six) months;
- the installation of products not manufactured but installed by the Company shall by warranted for a period of 3 (three) months. These products include, but shall not be limited to: tarps, ramps, lift-gates and/or -equipment, hoists, power units, hydraulic units, motors, electronic devices, Customer requested special-order items or - accessories. The Company shall assist the Customer in the facilitation of the relevant third-party warranty claim on such products.
- Equipment which have been refurbished by the Company shall be free from any defects that are attributable to defective material and/or poor workmanship for a period of 3 (three) months generally, and for a period of 6 (six) months in respect of the chassis, both reckoned from the Delivery Date; and
- all repairs that are carried out by the Company shall be free from defective materials and/or poor workmanship for a period of 3 (three) months reckoned from the Delivery Date.
- The Company does not make any representations or recommendations in relation to any Goods, other than as envisaged herein and shall further not be liable in respect of any defect in any such Goods;
- All used Goods, subject to Clause 10.1.4, shall be sold “Voetstoots”.
- in respect of all Goods newly manufactured by the Company, it shall be free from any defects as a result of defective material and/or poor workmanship for a period of 1 (one) year reckoned from Delivery Date, subject thereto that in the case of Equipment, the Customer submits the Equipment to the Company at any of its service branches for service:
The aforementioned guarantees are subject thereto that the Goods to which it applies:
- are correctly and properly operated by suitably qualified and/or licenced persons under circumstances that are normal for such Goods;
- are not modified or changed in any respect whatsoever save by the Company, or the Company's duly authorised agents;
- have been maintained, serviced and/or repaired during the guarantee period in accordance with the Manufacturer's service – and guarantee specifications;
- if defective, are reported to the Company in writing without delay;
- were serviced in accordance with the Company’s prescribed procedures and as stipulated in these Terms and in respect of Equipment newly manufactured by the Company, that all Service(s) have been properly and fully recorded to the satisfaction of the Company.
The Company shall not incur any liability under the aforementioned guarantees:
in regard to any defects which directly or indirectly arise from:
- normal wear and tear;
- incorrect or negligent use and/or failure to maintain;
- misuse or accident;
- wilful or intentional conduct;
- wheel nuts that are not properly fastened and/or tightened;
- U- and/or suspension- and/or centre bolts that are not properly fastened and/or tightened; and
- adjustments to the wheel bearings or the failure to maintain the wheel bearings;
with regards to damages from:
- inaccurate wheel alignment in respect of Equipment that is not submitted to the Company for re-alignment within 2 (two) weeks from date on which the Company did the relevant wheel alignment;
- incorrect, substandard and/or unroadworthy tyres; and
- the incorrect or improper use and/or maintenance of electrical -, hydraulic - and air systems and/or - components;
- in the event of the Customer, without the written consent of the Company, repairing, modifying or changing any Goods that are covered under the aforementioned guarantees and/or used by the Customer whilst a possible claim in terms hereof is pending; and
- in case of the Customer owing any amount to the Company that is due and payable but unpaid.
- in regard to any defects which directly or indirectly arise from:
- Any liability of the Company which may arise in respect of the Goods under the aforementioned guarantees, and at the absolute discretion of the Company, shall be limited to the replacement or repairs of the Goods.
In the execution of its liabilities under the aforementioned guarantees, the Company shall be entitled, in its absolute discretion, to insist that:
- any Goods that need to be repaired, be delivered at the expense of the Customer to the Company at any of its nominated branches; and/or
- any Goods to be replaced shall be returned by the Customer to the Company at any of its nominated branches and shall any such replacement Goods be delivered to the Customer ex works.
- The Company shall not under any circumstances whatsoever be liable towards the Customer for any indirect or consequential damages or for any loss of profits or special damages whatsoever which the Customer may suffer or sustain as a result of any defect in any Goods sold or Services provided by the Company or due to a breach of any of the aforementioned guarantees or otherwise.
- Except as stated in these Terms, no guarantee or representation of whatever nature that is made on behalf of the Company shall be binding on or valid against the Company and all common law guarantees to which the Customer otherwise would have been entitled are expressly excluded.
- The aforementioned guarantees shall lapse on transfer of ownership of the relevant Goods and may any of the rights arising from the guarantees not be transferred or ceded.
- The Company guarantees expressly, subject to the undermentioned limitations and exclusions, that:
REPRESENTATION AND WARRANTIES BY THE CUSTOMER
The Customer makes the following representations and warrants as set out below:
- Status If it is a juristic person, it is duly incorporated and validly existing under the law of its jurisdiction of incorporation.
- Binding Obligations The obligations as envisaged in these Terms are legal, valid, binding and enforceable obligations imposed on the Customer.
Power and Authority
- It has the power to enter into and has taken all necessary action to authorise its entry into and performance in terms hereof; and
- The person acting on its behalf in its dealings with the Company is duly authorised to do so.
Insolvency and Financial Distress
- corporate action, legal proceeding or other procedure or step contemplated in the definition of Insolvency Event; or
- creditors’ process contemplated in the definition of Insolvency Event,
- The Customer acknowledges that the Company has been furnished with and may in future come into possession of Personal Information of the Customer and where applicable of it’s directors, members, partners, trustees, sureties etc., whether previously or as part of this agreement.
- The Customer hereby consents to the Processing by the Company of its Personal Information as well as the Personal Information of its directors, members, partners, trustees, sureties etc., where applicable.
- The Customer further authorises the Company to obtain, provide and verify any Personal Information with any designated third party for the purposes stated in clause 12.5.
- The Customer consents to the retention of any Personal Information addressed in this clause for an indefinite period. The Customer may however revoke the aforementioned consent in writing at any time.
The Parties agree that the purposes of Processing under this clause are as follows:
- Internal Statistics;
- Risk management, credit checks, credit reporting; and/or
- Future marketing of Goods and Services by the Company.
- None of the aforementioned derogates from the Company’s right to process and retain Personal Information as otherwise provided for in POPIA.
- The Parties agree that the Customer shall have the duty of informing the Company of any changes in the Personal Information received from the Customer and to ensure the continued accuracy of any Personal Information provided to the Company.
- Where Personal Information relates to any person other than the Customer, including any of the Customer’s directors, officers, employees or principals, the Customer warrants that it has obtained the consent of the relevant person to whom such Personal Information relates, authorising the Customer to disclose such Personal Information to the Company and any relevant third party as well as authorising the Company and any relevant third party to Process such Personal Information.
- The Customer confirms that it is aware of its rights in terms of POPIA which include, but are not limited to, its right to request the details of all Personal Information being Processed by the Company and its right to approach the Information Regulator in regards to any alleged non-compliance with POPIA.
BREACH AND TERMINATION
- Termination by notice Notwithstanding any contrary provision envisaged herein, the Company may terminate this agreement for convenience by giving the Customer not less than 14 (fourteen) days’ prior written notice.
Unless otherwise provided by the Company, this agreement shall automatically terminate if:
- the Customer is a natural person, upon his death;
- the Customer is a partnership, upon dissolution thereof; or
- an Insolvency Event occurs in respect of the Customer.
Without limiting its other rights or remedies, the Company shall be entitled forthwith to cancel this agreement and/or to claim immediate payment and/or performance by the Customer of all of the Customer’s obligations, whether or not such payment and/or performance is due, by giving written notice to the Customer, if the Customer:
- breaches any warranty envisaged herein;
- breaches these Terms and such breach cannot be remedied or if such breach can be remedied fails to remedy such breach within 5 (five) days after receipt of written notice from the Company to do so;
- suspends or ceases, or threatens to suspend or cease, the carrying on all or a substantial part of its business; and/or
- repeatedly breaches any of these Terms in such a manner as to reasonably justify the Company’s opinion that the Customer’s conduct is inconsistent with it having the intention or ability to give effect to these Terms.
Without limiting the rights or remedies of the Company on termination or cancellation of these Terms for any reason:
the Customer shall immediately pay to the Company:
- all of the Company’s unpaid invoices, interest, penalties and costs, and in respect of Goods delivered and/or Services provided, but which have not yet been invoiced, the Company shall submit an invoice which shall be payable by the Customer immediately;
- the cost of any Goods and/or Services ordered which cannot be reasonably avoided or cancelled; and/or
- the costs or losses incurred by the Company as a result of the cancellation of third-party agreements, including any cancellation fees.
- in the absolute discretion of the Company, it may elect to have all the Goods in possession of the Customer that have not yet been paid for in full returned to the Company, in which event the Customer authorises the Company to enter any premises at which the Goods may be kept and to take possession thereof. Until the Goods have been returned, the Customer shall be solely responsible for its safekeeping and shall not use it for any purpose whatsoever;
- the Company shall have the right to set-off any amount due in terms of any other agreement with the Customer against any deposit or advance payment paid to the Company by the Customer in terms hereof; and
- the accrued rights and remedies of the Company as at termination shall not be affected, including the right to claim damages or to institute any applicable action in respect of any breach of the agreement which existed at or prior to the date of termination.
- the Customer shall immediately pay to the Company:
JURISDICTION AND COSTS
- The Company shall be entitled, at its discretion, to institute proceedings against the Customer in connection with these Terms in any Magistrate’s Court having jurisdiction notwithstanding that such claim may exceed the monetary jurisdiction of such Court.
- Notwithstanding the above, should the Company elect to institute proceedings in the High Court, the Customer hereby consents and submits to the jurisdiction of the High Court of South Africa.
- In the event of cross border transactions or where the Customer trades or is resident outside the borders of South Africa the Company may in its absolute discretion elect to institute legal action any competent High Court of South Africa or such other country in which the Customer trades or is resident in subject to clause 15.8.
- The Customer is liable for all legal costs incurred by the Company resulting from a breach of these Terms, on an attorney-and-own-client scale, including all tracing fees and collection commission and on a full indemnity basis.
- Address for Legal Service The Customer hereby chooses its domicilium citandi et executandi for purposes of service of any legal process and the dispatch of accounts and notices in terms hereof, as the address indicated as the physical business address by the Customer in the Schedule hereto and in the absence of such address, the address of the Customer that appears on the most recent invoice of the Company to the Customer.
- Remedies No remedy of the Company conferred by these Terms is intended to be exclusive of any other remedy which is otherwise available at law, by statute or otherwise, and each remedy shall be cumulative and in addition to every other available remedy existing at law, by statute or otherwise. The election of any one or more remedy by the Company shall not constitute a waiver by the Company of the right to pursue any other remedy.
- Severance If any provision of these Terms which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- The Customer cannot assign any of its rights, benefits, obligations and liabilities under or arising from these Terms without the prior written consent of the Company; and
- The Customer hereby agrees that the Company may cede, assign or delegate any of its rights, benefits, obligations and liabilities under or arising from these Terms, or appoint an agent to perform any of the Services, without the Customer’s additional consent and without giving notice to the Customer.
- Orders Should a written order be addressed to the Company on the Customer's official order form, the Customer shall not be entitled to deny the validity of such order and the Customer shall be bound by such order, notwithstanding the fact that such order may have been given or signed by a person who is not authorised by the Customer to do so.
- Suretyship Every person signing these Terms on behalf of the Customer binds himself in his personal capacity as surety and co-principal debtor towards the Company for the due and proper performance by the Customer of its obligations towards the Company.
- Counterparts This agreement may be signed in counterparts, all of which taken together shall constitute one and the same agreement.
- Governing law The validity of these Terms, its interpretation, the respective rights and obligations of the Parties and all other matters arising in any way out of it or its expiration or earlier termination for any reason shall be determined in accordance with the laws of South Africa.
- Cession of Debts The Customer hereby cedes to the Company its right, title and interest in present and future book debts as continuing security for its indebtedness under this agreement and to the extent necessary to cover any Consideration due and payable but unpaid. The Customer shall on demand thereto furnish the Company with a list of all its debtors containing the information reasonably required to enforce this cession.
Waiver and Concession
- No failure by the Company to enforce any provision of these Terms shall constitute a waiver of such provision or in any way affect the Company’s right to require performance of any such provision at any time in the future, nor shall the waiver of any subsequent breach nullify the effectiveness of the provision itself; and
- No concession, indulgence or relaxation which the Company may grant to the Customer shall in any way limit or diminish the rights of the Company or be interpreted as a waiver by the Company of any of its rights herein.
- The Company shall not be responsible for any failure to perform its obligations in terms hereof if it is prevented or delayed in performing such obligations by an event of force majeure;
- If the force majeure-event continues for more than 30 (thirty) days the Company may terminate this agreement between the Parties hereto by giving not less than 10 (ten) days' written notice to the Customer; and
- The events of force majeure shall include, but not be limited to: strike, lock-out, shortage of labour or materials, power-failures, delays in transport, accidents of any kind, any default or delay by any sub-contractor or supplier of the Company, insurrection, riot, robbery, sabotage, blockade, embargo, coup, economic crisis, international or national restrictions, any order of an international authority or court, any requirements of any authority or other competent local authority, foreign exchange restrictions, interruption in electricity supply, fire or explosion, revolt, civil commotion, state or government or any other authority, disorder, a state of emergency in any relevant jurisdiction, labour dispute, war, invasion, hostilities, civil war, disease or epidemic, pandemics and acts of terrorism, political or civil disturbances, cyber-attacks, system breaches or electronic communication failures, the elements, inclement weather, natural catastrophes such as earthquakes, hurricanes, floods or droughts, unforeseen physical conditions (whether man made or natural) or any act of any state or government or any other authority.
- The Customer acknowledges and confirms that neither the Company nor the Company’s directors, officers, employees or agents offered or promised any form of reward to the Customer or any of its employees, officers or agents in order to secure any business in terms hereof; and
- The Customer shall immediately notify the Company if any of the Company’s directors, officers, employees or agents solicits any payment or any other item of value outside of the normal compensation payable under this agreement.
- Certificate A certificate signed by a manager of the Company, whose appointment need not be proven, setting out any amount owing by the Customer to the Company in terms hereof shall be sufficient evidence of the particulars included therein for purposes of judgment, including provisional sentence or summary judgment. If the Customer disputes any amount forming part of such certificate, the Customer shall bear the onus to proof same.
Non-Disclosure And Intellectual Property
- For purposes hereof, “Intellectual Property” means rights in and to patents, inventions, copyright and related rights, trademarks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, know-how and all other intellectual property rights, in each case, whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world.
- All rights, title and interest in and to the Intellectual Property owned by either the Company or the Original Equipment Manufacturer (“OEM”) pertaining to the Goods shall vest respectively in either the Company or the OEM, as the case may be, and all benefits arising from the use of the Intellectual Property shall inure exclusively for the benefit of the Company and/or the OEM respectively. The Customer acknowledges that it has no rights in or to the Intellectual Property.
- The Customer shall not make any representation or act in any way which may be taken to indicate that it has any right, title or interest in or ownership or use of the Intellectual Property.
- The Customer undertakes not to do or permit to be done any act which may impair or prejudice the right, title or interest of the Company and/or the OEM in and to the Intellectual Property.
- The Customer shall promptly notify the Company of any conduct by any party which constitutes, or which potentially constitutes, an infringement of any of the Intellectual Property rights and which comes to the attention of the Customer.
- If the Customer becomes aware of any allegation that the Goods infringe any rights of another party, or that the Intellectual Property is otherwise threatened or likely to be adversely affected, the Customer shall immediately inform the Company and shall make no comment or admission to any third party in respect thereof.
- The Company shall in its absolute discretion decide on the applicable remedial action to be instituted, if any, in respect of any infringement or alleged infringement of the Intellectual Property, or passing-off or any other claim or counterclaim brought about or threatened in respect of the use or registration of the Intellectual Property. The Customer undertakes to provide such assistance as the Company may require in relation to any such action.
- All written or verbal information supplied by the Company to the Customer regarding Intellectual Property, products, services, developments, inventions, processes and procedures, product specifications, plans, customers, pricing and all other data whether of a financial, technical, technological, labour related, marketing, administrative or accounting nature (“Confidential Information”) shall be treated as confidential and shall not be disclosed to third parties without the Company's prior written consent. Such information shall be exclusively used for the performance by the Parties in terms hereof.