Terms And Conditions
1. Terms And Conditions
These are the Terms and Conditions relating to the Customer’s rights and other matters in respect of the purchase, implementation, installation (the work) to be carried out and or any advice supplied in respect of the goods. The expression ‘Goods’, wherever used in these terms and conditions refers to and includes:
- Any software packages/solutions
- Consultation/Professional Services
- Implementation and;
- Each and every component of the goods as a separate unit.
The Customer acknowledges and agrees that: XContent Business Solutions (Pty) Ltd (the Service Provider) in their efforts to comply with relevant South African legislation and good business practices, all previous and still subsisting agreements shall be deemed to have been made in terms of this agreement, with the specific exclusion of any existing service level agreements (SLA) between the Service Provider and the Customer that may subsist at any time, however and despite any existing SLA, the SLA shall not limit any right and/or obligation in respect of the goods that the Service Provider may have and vice versa.
2 ADDITIONAL WORK
- 2.1 In the event that additional work not authorised in terms of the service level agreement becomes necessary, the Service Provider shall provide the Customer with the estimation pertaining to such additional work and shall obtain the Customer’s prior approval before carrying out any additional work.
- 2.2 In the event that the Customer has authorised additional work to be carried out as contemplated in clause 2.1 above, such additional work shall be subject to all terms and conditions as well as pre-existing service level agreements (if any) and shall not be deemed to constitute or create a new or separate contract.
3. CANCELLATION TERMS
3.1 The Customer has the right to cancel the order at any time provided that such cancellation takes place:
- 3.1.1 at a reasonable time before the Service Provider is to commence with the work or any portion thereof (including site visits, inspections), then no cancellation fee will be levied;
- 3.1.2 for purposes of this agreement the Service Provider and the Customer agree that 30 business days is reasonable notice;
The Service Provider may not disclose any of the Customer’s personal information other that for the purpose set out in this agreement, unless required by a court of law or under any applicable legislation.
5. FAIR AND HONEST DEALINGS
- 5.1 The Customer has had a proper opportunity to consider the implications of this agreement (including the cost estimate) and the Customer enters into this agreement without any undue influence by the Service Provider or any of its employees.
6. FAIR, JUST AND REASONABLE TERMS AND CONDITIONS
- 6.1 Any change to the terms and conditions of this agreement will only be valid if it is made in writing and signed by both the Service Provider and the Customer.
- 6.2 The customer representative has the legal capacity and authority to enter into this agreement.
- 6.3 This agreement shall be interpreted and determined according to the laws of the Republic of South Africa.
- 6.4 If any clause in this agreement is found to be unenforceable, such clause shall be separated from this agreement, such separation shall not affect the enforceability of the balance of this agreement. (This Agreement will be read as if the unenforceable clause never formed part of this document)
- 6.5 For the purpose of service of any legal documents or notices in terms of this agreement the parties choose the address on the face of this agreement for delivery or service of any legal documents or notices in terms hereof.
- 6.6 If a party is in breach of this agreement, the innocent party will have the right to recover all legal costs and disbursements on an attorney and client scale. (The recovery of all legal costs as determined by a court of competent jurisdiction.)
7. FAIR VALUE, GOOD QUALITY, AND SAFETY
- 7.1 The Customer has been informed that the Service Provider only uses genuine software packages.
- 7.2 If the goods are subject to a Manufacturer’s Warranty, such warranty will run concurrently with any other statutory warranty applicable to the goods. In the case of software, the manufacturer’s end-user licence agreement must also be adhered to
7.3 The Customer has been informed that any applicable warranty will:
- 7.3.1 be void if the Customer does not strictly comply with the terms and conditions of such warranty;
- 7.3.2 not apply to ordinary wear and tear and normal usage of the goods;
- 7.3.3 be void if the goods or parts have been subjected to misuse or abuse or have been equipped with grey (goods marketed that bear a trade-mark but have not been imported without the express approval or licence of the authorised South African distributor) or pirate (counterfeit) goods. This also applies if, any alterations to the working of the goods have been made without the Service Providers knowledge, and/or any other incompatible goods have been used in conjunction with the supplied goods.
- 7.4 Where the Service Provider is not the primary developer of the software, provided it is not a Service Provider appointed Subcontractor, the Service Provider cannot be held liable for software bugs, that the Service Provider could not have reasonably been aware of, that become apparent in the use of the software. This liability lies with the manufacturer and developer of the software. The Service Provider will attempt to rectify software bugs to the point where only the software developer (manufacturer) can rectify these bugs. Software bug rectification and mediation on behalf of the Customer with the original manufacturer of the software constitutes additional work as contemplated in clause 2.1.
- 7.5 Due to the nature of the goods, the Customer must bring to the attention of the Service Provider all data the Customer wishes to be safeguarded against loss. That data reconciliation constitutes additional work which will be charged for.
- 7.6 The Service Provider cannot take any responsibility for any loss or damage caused by the Customer not complying with the clause set out in 7.5.
8. PAYMENT TERMS
- 8.1 Unless otherwise expressly stated, prices are exclusive of value-added tax (VAT) and all other relevant taxes and duties that may apply, which shall be for the account of the Customer.
- 8.2 Payment terms are 15 days upon receipt of invoice for services. For software, immediate payment on receipt of invoice is required. Prices quoted are subject to final scope.
- 8.3 Microsoft licensing pricing is subject to vendor input variation & Dollar ($) ROE variation. As a result, pricing quoted is subject to change without prior notification.
- 8.4 Travel and Subsistence is not quoted for and will be additional if travel is required. These charges will be for the Customer’s account.
- 8.5 All desktop services and desktop support are expressly excluded.
- 8.6 Unless otherwise expressly stated, labour will be billed at an hourly rate to which a minimum charge of one hour applies. All charges for labour will be rounded up to the nearest hour.
- 8.7 The Customer acknowledges that they have no right to withhold any undisputed payment and if the Customer disputes a tax invoice, the Customer shall pay the undisputed portion and payment of the disputed portion of the tax invoice shall be withheld until resolution of the dispute. If the Customer elects to make payment on a disputed invoice, the Customer shall retain the right to pursue resolution of the disputed amount any time after payment is made to the Service Provider, including seeking reimbursement. Payment by the Customer shall not be construed as an acknowledgement that the Services comply with this Agreement.
- 8.8 The Customer is not entitled to set off any amount due to the Service Provider, nor shall any payment be withheld pending any litigation in terms of this agreement or otherwise or set off any amount due to the Service Provider as part of a counterclaim.
8.9 The purchase price in respect of any goods sold by the Service Provider to the Customer in terms of this agreement shall be payable:
- a) by the Customer to the Service Provider;
- b) in South African currency
- c) without deduction or set-off and free of any exchange
- 8.10 The liability in respect of goods supplied may be financed by the Customer through a third party, remain with the Customer.
8.11 XContent Business Solutions (Pty) Ltd shall have the right to claim interest on the arrear amount/s, interest to be calculated at the current prime lending rate.
- 8.12 In the event of it becoming necessary to instruct Attorneys or Professional Debt Collectors to take steps (including the institutions and prosecution) to recover any amount/s that might be outstanding from time to time, then the Customer undertakes to pay all costs between Attorney/s, Debt Collectors and Client, including tracing charges and all tariff collection charges. The Customer is also responsible for all bank charges incurred due to any payment stoppages.
9. INTELLECTUAL PROPERTY:
XContent Business Solutions (Pty) Ltd will retain the copyright associated with any code written during project.
10. LIMITATION OF LIABILITY
- The Customers liability for foreseeable damages to the Service Provider, for any cause whatsoever, and regardless of the form of action, whether in contract or delict, shall be limited to actual monies paid to the Service Provider in respect of the actual breach/s. In no event, and notwithstanding anything said to the contrary in this Agreement, shall the Customer be liable to the Service Provider in any way for any indirect, special or consequential damages.
11. THE SERVICE PROVIDER’S OBLIGATIONS
11.1 For services provided specifically and directly with regards to the setup of the proposed Azure environment, the Service Provider agrees that it shall: (i) comply with all reasonable requests of the Customer with respect to protecting the Personal Data, including but not limited to: restricting its Personnel’s access to the Personal Data, following the Customer’s reasonable instructions in connection with processing the Personal Data, not disclosing the Personal Data to any third party without the Customer’s
written permission, applying appropriate security measures to protect the Personal Data and complying with all applicable data protection laws. In the event of any unauthorised, unlawful and/or unintended processing, access, disclosure, exposure, alteration, loss, or destruction of the Personal Data, the Service Provider shall immediately notify the Customer and cooperate with the Customer’s reasonable requests to investigate and remediate such incident. Personal Data shall for the purposes of this clause mean “means any
of the Customer’s or the Customer’s client’s, supplier’s and/or Personnel’s data, of whatsoever nature, supplied to and/or stored, collected, collated, accessed or processed by the Service Provider under or in connection with this Agreement, including personal information as defined in the Protection of Personal Information Act, No. 4 of 2013; and (ii) without limiting the Service Provider’s liabilities or responsibilities in terms of this Agreement, obtain and maintain for the duration of this Agreement sufficient insurance
to cover its liabilities and responsibilities arising out of or under and in connection with this Agreement, and the Customer shall be entitled to, at any time, request the Service Provider to provide the Customer with documentary proof of such insurance cover.
12. REPRESENTATIONS AND WARRANTIES
12.1 Each Party warrants that:
- 12.1.1 it has the capacity and authority to enter into this Agreement; and
- 12.1.2 the person entering into this Agreement on its behalf has been duly authorised to do so.
12.2 The Service Provider warrants that:
- 12.2.1 it shall for the duration of this Agreement, use adequate numbers of qualified personnel with suitable training, expertise and skill to perform its obligations under this Agreement;
- 12.2.2 the Services shall be performed with due care and skill as a reasonably prudent service provider of similar services would use under similar circumstances;
- 12.2.3 the Services shall be performed in a safe, diligent and workmanlike manner, in accordance with generally accepted industry practices;
- 12.2.4 in the execution of the Services, it shall adhere to all applicable laws (as amended from time to time);
- 12.2.5 it shall perform its responsibilities and obligations in a manner that does not infringe, or constitute an infringement or misappropriation of any intellectual property rights of any third party;
- 12.2.6 it shall comply with the standard, health, safety and security procedures of the Customer and the Customer’s clients; and
- 12.2.7 it possesses any and all licenses necessary to perform the Services and/or provide the Software and that any such licenses to use the Software and/or services shall be in effect for the duration of this Agreement.
13. BREACH AND TERMINATION
13.1 Should either Party:
- 13.1.1 Enter into or attempt to enter into a compromise and/or debt arrangement with all or any of its creditors;
- 13.1.2 Pass any resolution authorising, or becomes the subject of, business rescue proceedings in terms of the Companies Act, No. 71 of 2008;
- 13.1.3 Being a company or close corporation be wound up, whether voluntarily or by order of court, and whether provisionally or finally;
- 13.2 Should a Party (“the Defaulting Party”) breach any of the obligations of this Agreement, the other Party (“the Aggrieved Party”) shall be entitled to provide the Defaulting Party with 14 (fourteen) days written Notice to remedy such breech.
- The Service Provider shall on demand, defend, indemnify and hold harmless the Customer and the Customer’s personnel in full for, from and against any and all loss, damage, injury, liability, demands, claims, proceedings, penalties,
costs and expenses (including but not limited to, legal fees on an attorney and own client scale) suffered or incurred by the Customer or the Customer’s personnel arising whether directly or indirectly out of or in connection with: (i)
any negligence, fraud or misconduct on the part of the Service Provider or any of its personnel; (ii) any breach or non-compliance by the Service Provider or any of its personnel of the terms of this Agreement; (iii) any claim made against
the Customer or any of the Customer’s personnel for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the supply and/or use of the Software and/or Services; (iv) any claim made
against the Customer or any of the Customer’s personnel for death, personal injury or damage to property arising out of or in connection with the Services; and/or (v) the Service Provider’s or any of its personnel’s performance or non-performance
of this Agreement.