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
- 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 working days is reasonable notice;
- 3.1.3 at any other time than the time as contemplated in paragraph 3.1.2, then the Customer will be liable to pay a cancellation charge of not more than 15% of the order which shall include, but shall not be limited to the labour for the work carried out up to the time of cancellation, a handling fee which shall include but not limited to any un-installation, consultant fee and the cost of all/any software and accessories installed.
The Service Provider may not disclose any of the Customer’s personal information other than 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.
- 5.2 The Service Provider will carry out the work as soon as is reasonably possible and no exact delivery date and time has been agreed. The Service Provider cannot warrant exact delivery dates and time.
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 scale of recovery of legal fees and disbursements prescribed by legislation.)
- 6.7 Any amount indicated on any invoice issued by the Service Provider will be regarded as a liquidated amount (an amount that is easily determinable) and any such amount will be prima facie (on the face value thereof) regarded as correct.
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, 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 The Service Provider shall, subject to clause 7.6 below, return all goods and accessories removed by it in the ordinary course of carrying out the work to the Customer, if the Customer has requested to do so. Provided, that it is not prohibited by any applicable legislation.
- 7.6 The Service Provider shall not be obliged (due to the nature of the goods) to remove and/or uninstall goods during the course of doing the work, if such accessories or goods form part of a warranty or insurance claim, in which event the Customer authorises the Service Provider to return it to the relevant Manufacturer and/or insurer.
- 7.7 In the event that the replacement and or selling of any goods are subject to any insurance claim, the Customer acknowledges that the Customer shall be liable for full payment, and that the Customer shall recoup any amounts directly from its insurer, the same principle shall apply to any finance that may have been received to purchase the goods.
- 7.8 If the Customer declines the return of any goods as contemplated above, such goods shall be deemed to have become the property of the Service Provider.
- 7.9 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.
- 7.10 The Service Provider cannot take any responsibility for any loss or damage caused by the Customer not complying with the clause set out in 7.9.
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. The Customer shall pay or reimburse to the Service Provider the amount of any value-added tax simultaneously with the purchase price.
- 8.2 Payment terms are 30 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 Should, due to circumstances beyond the Service Provider’s control, overtime be required to ensure all deadlines are met an after-hours rate will be levied at the hourly rate time 1.5 for evenings and Saturdays and the hourly rate times 2 for public holidays and Sundays. Labour invoices are due at the end of the month in which they are raised.
- 8.8 Unless otherwise expressly stipulated, reconciliation of data is charged for over and above any labour estimate quoted.
- 8.9 Unless otherwise expressly stated a call-out fee per kilometre will be levied per site visit for sites outside a 50km radius of the Service Provider’s head office.
- 8.10 The Customer acknowledges that they have no right to withhold any payment for any reason whatsoever, and are not entitled to set off any amount due to the Customer by 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.
- 8.11 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 cash;
- c.) in South African currency
- d.) without deduction or set-off and free of any exchange; and
- e.) during or before the expiry of the credit period as agreed by the Service Provider, which period shall commence upon the issuing of an invoice by the Service Provider, or if no credit period has been approved, cash or order.
- 8.12 The liability in respect of goods supplied that may be financed through a third party remain with the Customer.
- 8.13 XContent Business Solutions (Pty) Ltd shall have the right to claim interest on the arrear amount/s, interest to be calculated at the current legal rate.
- 8.14 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 as provided at a rate of eighteen (18) percent instalment. The Customer is also responsible for all bank charges incurred from R.D Cheques or any payment stoppages.
9. INTELLECTUAL PROPERTY:
XContent Business Solutions (Pty) Ltd will retain the copyright associated with any code written during project.