1. Introduction
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.
2. Definitions and interpretation
Definitions. In the agreement:
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;
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 user ID and password that has been assigned to an authorised user;
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 we provide to you, under orders;
ICT means information, communication or technology;
order means an order placed though the website describing the specific goods to be provided by us 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: concepts or ideas; methods or methodologies; procedures or processes; know-how or techniques; function, process, system, data, or object models; templates; the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs; general purpose consulting and software tools, utilities, routines or frameworks; logic, coherence and methods of operation of systems; and patches or enhancements to open source libraries;
personnel means any director, employee, agent, affiliate, consultant, contractor or other representative;
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: • tax (including value added tax, income taxes, pay-as-you-earn tax or other taxes levied in any jurisdiction); • duty (including stamp duty); • tariff, rate, levy; or • any other governmental charge or expense payable;
terms means the terms, consisting of: • these terms of service; and • any other relevant specific terms, policies, disclaimers, rules and notices that the parties agree on, (including any that may be applicable to any specific goods);
we, us, or our means the vendor or service provider 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: • you (or any third party on your behalf) provide to us; or • we generate, process, or supply to you in providing the goods; but excludes any derived data that we create for our own internal purposes or which is proprietary or confidential to us or our third party contractors;
2.1 Definitions in the order. Words defined (or assigned a meaning) in an order will have that meaning in the terms, unless the context clearly indicates otherwise.
2.2 Interpretation. 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.
2.3 Conflict. If there is a conflict of meaning between these terms and any order, the order will prevail in respect of your use of the relevant services.
3. Duration
The terms commence on acceptance and continue until terminated.
4. Orders
4.1 Capacity. You represent and warrant that you (and any person who places an order): • are old enough under applicable law to enter into the agreement; • are legally capable of concluding any transaction; • possess the legal right, full power, and authority to enter into the agreement; • are authorised to use the credentials required for any account; and • will submit true, accurate and correct information to us. If you are younger than 18 years of age, you warrant that you have the consent of your legal guardian to enter into the agreement or that you have obtained legal status in another manner.
4.2 Invitation to do business. 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 ship 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.
4.3 Cancel. Unless otherwise agreed, we may cancel any order at any time in our absolute discretion. We will refund any monies already paid by you.
4.4 Fees. Despite our best efforts, the stated fees may be incorrect. We will confirm the fees for any goods when we accept your offer.
4.5 Third party terms. If a third party delivers any goods directly to you, third party terms or conditions may apply. You are solely responsible to ensure they understand and agree to those terms.
4.6 Time and place. 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.
4.7 Orders. 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.
4.8 Stock availability. We may not always have the goods on which you make offers in stock. You may cancel the offer or make another offer on the part of the goods that are in stock.
5. Goods
5.1 Sale. We sell the goods to you who purchases them on the terms of the agreement.
5.2 Countries. You may only make offers for goods for delivery to the countries specified by us. If your shipping 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 ship to those countries.
5.3 Freight and packaging. Unless otherwise agreed in an order the goods will be supplied on the following basis: • we will pack the goods in accordance with our packaging specifications for the goods; • in the absence of any packing specifications, we will package the goods suitably to ensure that damage in transit does not occur due to incorrect packaging; • the fees will exclude the cost of packaging; • unless otherwise agreed in writing, we will select the specific mode of freight of the goods; and • the freight costs will be for your account.
5.4 Time until dispatch. 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.
5.5 Risk and ownership. 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.
6. Your Data
6.1 Your data. We are not responsible for any of your data stored on our system.
6.2 Location of your data. 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.
6.3 Privacy and protection of personal information. • Legal obligations. We are responsible for complying with our obligations and you are responsible for complying with your obligations under applicable laws governing your data. We both acknowledge that we are not investigating the steps the other is taking to comply with any applicable privacy and protection of personal information laws. • Responsible party. 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. • Trans-border flows of your data. 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. • Indemnity. 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.
6.4 Access. 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.
6.5 Preservation of integrity of your data. Both of us will take reasonable precautions (having regard to the nature of each of our obligations under the agreement), to preserve the integrity of your data and prevent any unauthorised access, corruption or loss of your data.
6.6 Records. You agree that our records are prima facie evidence of the goods provided to you.
6.7 Return of data. 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.
7. Intellectual property
7.1 Your data. 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 accessed through the website belong to you or the applicable content owner and may be protected by applicable copyright or other law.
7.2 Retention of rights. 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.
7.3 Use of our technology. 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.
7.4 Trademarks. Our logo and sub-logos, marks, and trade names are our trademarks 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.
7.5 Restrictions. Except as expressly permitted under the agreement, the website may not be: • modified, distributed, or used to make derivative works; • rented, leased, loaned, sold or assigned; • decompiled, reverse engineered, or copied; or • reproduced, transferred, or distributed.
7.6 Prosecution. All violations of proprietary rights or the agreement will be prosecuted to the fullest extent permissible under applicable law.
8. Our warranties
We warrant that • we have the legal right and full power and authority to execute and deliver, and to exercise our rights and perform our obligations under the agreement; • we and our personnel will not knowingly introduce any malicious software into your material or your system.
9. Disclaimer of warranties
9.1 Disclaimer. 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;
9.2 Exclusion of liability. 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.
10. Your warranties
You warrant that:
10.1 you have not been induced to enter into the agreement by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in the agreement;
10.2 by entering into an order you are not acting in breach of any agreement to which you are a party; and you agree to indemnify, defend, and hold harmless us (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.
11. Fees and payment
11.1 Due dates. 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.
11.2 Manner of payment. You must make payment in the manner specified.
11.3 Late payments. Any additional surcharges and penalties specified will apply to any payment received after the due date to cover collection fees and additional administration costs. You must pay the surcharges and penalties to us on-demand. We may withhold or remove any goods until you have paid all amounts that are due.
11.4 Interest on overdue amounts. To the extent permitted by applicable law, any amount not paid by you on the date of the statement of outstanding invoices will bear interest for our benefit, from the due date until the date you pay it. The rate of interest will be either 2% above the published prime overdraft rate from time to time of our bankers or 15%, whichever is higher. A letter signed by a general, branch or other bank manager setting out their rate will be proof of the rate. Interest will be payable on a claim for damages from when the damages were suffered.
11.5 Appropriation. We may appropriate any payment received from you towards the satisfaction of any indebtedness of you to us under the agreement.
11.6 Withhold payment. You may not withhold payment of any amount due to us for any reason.
11.7 Certificate. A certificate, signed by an accountant appointed by us, of the amount due by you and the date on which it is payable will be proof of the correctness of the certificate’s contents.
11.8 Tax. All fees exclude any tax, which will be payable where applicable by you in addition to the fees.
11.9 Payment profile. You and any signatory consent and agree that we may provide any registered credit bureau with information about the payment of amounts.
12. Limitation of liability
12.1 Direct damages limited. 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 a 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.
12.2 Indirect damages excluded. 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.
12.3 Exclusions. 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 gross negligence.
12.4 We are not liable for your default. 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.
12.5 Other goods or services. We are not liable for any other deliverable, including website, goods, or service provided by any third party.
12.6 Indemnity. We agree to indemnify, defend and hold you (and your personnel) harmless against any and all: • loss of or damage to any property or injury to or death of any person; and • loss, damage (including attorneys’ fees on an attorney and own client basis), costs and expenses that you may suffer or incur arising directly or indirectly from: (i) any wilful misconduct or fraud of us or our personnel; or (ii) a breach by us of your proprietary or confidential information, or intellectual property. 12.7 Liability. 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.
13. Breach and termination
13.1 If a party:
- does not fix any breach of this agreement (failure to comply with it) within seven days of receiving written notice from the other party to do so;
- breaches this agreement materially twice or more in any six month period;
- is insolvent (bankrupt), or has some legal disability, for example, if they are placed under administration;
- takes steps to deregister itself (close down) or is deregistered;
- makes any settlement or arrangement with its creditors; or
- fails to pay a court order against it (does not satisfy a writ of execution) for more than one million rand, within 21 days; then the other party may, without prejudice to any of its rights:
- claim specific performance of this agreement (make the party comply with this agreement); or
- immediately cancel this agreement in writing; and
- claim damages from the other party, including any claim for any fees already due.
14. Resolving disputes
14.1 Notifying each other. 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:
- negotiation (direct talks to try and agree how to end the dispute); failing which
- mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
- arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
14.2 Negotiation. 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.
14.3 Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
14.4 Arbitration. 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 Durban. 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.
14.5 Agree otherwise in an order. The parties may agree otherwise in an order.
14.6 Periods. The parties may agree in writing to change the periods for negotiation or mediation.
14.7 Urgent interim relief. 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).
14.8 Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
15. Notices and domicile
15.1 Notices. 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 specific terms.
15.2 Service (delivery) address for legal documents. 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.
15.3 Change of addresses or numbers. Each party may change the addresses or numbers in the specific terms to any other addresses or numbers in South Africa by writing to the other party 14 days before the change.
15.4 Deemed delivery. 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.
15.5 Notice actually received. If a party actually receives any notice or other communication, this will be good enough.
16. Force Majeure
16.1 Parties not liable. 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.
16.2 Party affected to notify other party. 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.
16.3 Right to cancel. 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.
17. Assignment and subcontracting
17.1 No assignment. No party may delegate its duties under this agreement or assign its rights under this agreement, in whole or in part. We may assign this agreement to any successor or purchaser of its business or some of its assets.
17.2 Exception. Despite this clause, we may cede and assign all rights and obligations under this agreement to a related person without your prior written consent, provided that we notify you within a reasonable time of the event occurring.
17.3 Our third party contractors. We may sub-contract or delegate our obligations under this agreement to third party contractors. We will remain liable for performance of the third party contractors. No one may require us to disclose the terms (including payment terms) of any sub-contract entered into with respect to our obligations under this agreement.
18. General
18.1 Entire agreement. The agreement is the entire agreement between the parties on the subject.
18.2 Changes to the terms. 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.
18.3 Changes to any third party software license agreement. We will notify you of any changes to any third party software license terms by placing a notice in a prominent place on our website, or notifying you by email. The updated third party software license terms will be effective immediately and you will be deemed to have accepted them upon notification.
18.4 Acceptance of changes. If you do not agree with the changes, you must stop using the service. If you continue to use the service following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.
18.5 Waiver (giving up of rights). Any favour we may allow you will not affect or substitute any of our rights against you.
18.6 Severability. 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.
18.7 Governing law. South African law governs this agreement.
18.8 Jurisdiction. 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.
18.9 Non-exclusivity. We may provide any goods or services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.
18.10 Costs. Each party is responsible for its own costs of drafting and negotiating this agreement.
18.11 Publicity. A party will not make any announcement or statement to the press about this agreement, without first getting written permission from the other party.
18.12 Right to reference. You consent to us using your name and a general description of the services in any marketing or sales material.