The parties agrees to the following terms and conditions:-
- In this Agreement, unless the context otherwise indicates:
1.1. the singular shall include the plural and vice versa;
1.2. reference to the masculine gender shall include the feminine gender and vice versa;
1.3. natural persons shall include created entities (corporate or unincorporated) and vice versa;
1.4. reference to “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” shall be any day other than a Saturday, Sunday or official public holiday as gazetted by the government of the Republic of South Africa from time to time;
1.5. unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a Saturday, Sunday or public holiday, the next succeeding business day;
1.6. where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention;
1.7. unless specifically otherwise provided, all amounts in this Agreement are exclusive of value-added tax; and
1.8. the following words and expressions shall, unless the context otherwise requires, have the meanings assigned to them below:
1.8.1 “Agreement” shall mean this document as amended from time to time by the parties;
1.8.2 “Company” shall mean Cash Processing Technologies (Pty) Ltd, registration number 2007/003845/07, its subsidiaries and its associated companies;
1.8.3 “Confidential Information” shall mean all material and information which has or will come into its possession or knowledge in connection with this Agreement, or the performance hereof, consists of confidential and proprietary data, whose disclosure to or use by third parties will be damaging to the other of them;
1.8.4 “Customer” shall mean the person who purchases the Company’s goods and/or utilizes its services from time to time pursuant to the provisions of this Agreement and whose name appears on the invoice levied in respect thereof; and
1.8.5 “party” shall mean either the Company or the Customer, as the case may be, and “parties” shall mean both of them.
- The parties agree that:
2.1 this Agreement constitutes the entire agreement between the Customer and the Company and the Customer shall not be entitled to rely on any terms, conditions or representations not expressly contained in this Agreement;
2.2 no alterations or additions to this contract will be of any force or effect unless agreed to by both parties, reduced to writing and signed by the Customer and a duly authorized representative of the Company;
2.3 this Agreement will govern all future contractual relationships between the parties and is applicable to all existing debts between the parties;
2.4 the laws of the Republic of South Africa shall govern this Agreement;
2.5 no indulgence, leniency or extension of a right, which either of the parties may have in terms of this Agreement, and which either party (“the grantor”) may grant or show to the other party, shall in any way prejudice the grantor, or preclude the grantor from exercising any of the rights that it has derived from this Agreement, or be construed as a waiver by the grantor of that right. No waiver on the part of either party to this Agreement of any rights arising from a breach of any provision of this Agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision; and
2.6 any invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity of any other of its provisions.
- Save as expressly set out in this Agreement, the Company does not make any representation or give any warranty or guarantee of any nature whatsoever in respect of the goods and/or services supplied in terms of this Agreement and the Customer agrees that neither the Company nor any of its employees will be liable for negligent or innocent misrepresentations made to the Customer. All common law warranties are hereby expressly excluded.
- THE CUSTOMER HEREBY ACKNOWLEDGES THAT HE/SHE HAS READ AND UNDERSTOOD EACH TERM OF THIS AGREEMENT AND ACCEPTS THEM AS BINDING.
- The Customer hereby confirms that the goods and services on the invoice duly represent the goods and services ordered by the Customer at the prices agreed to by the Customer and, where performance/delivery has already taken place, the Customer confirms that the services and goods were inspected and conformed to the quality and quantity ordered.
- Any delivery note (copy or original) signed by the Customer and held by the Company shall be conclusive proof that delivery was made to the Customer.
- Notwithstanding the provisions of clause 2, all orders, whether oral or in writing, will be binding on the Customer and subject to these standard conditions of agreement and may not be cancelled by the Customer.
- The Company may elect to make use of a courier service to deliver the goods to the Customer. The Company shall consider any form of delivery note as sufficient proof of delivery of the goods to the Customer. The Company may in its sole discretion arrange multiple deliveries of the goods to the Customer due to reasons of security.
- The Company shall be entitled to invoice each delivery actually made separately.
- The risk of damage and destruction and of profit and loss shall pass to the Customer on delivery by the Company, to the address of the Customer.
- Notwithstanding delivery of any goods to the Customer, ownership shall not pass until the Company has received payment of the full purchase price. The Customer is not entitled to sell any goods unpaid for without the prior written consent of the Company.
- The title to and ownership of any software, documentation and other Confidential Information of the Companyand all copies thereof are, and shall remain, in the Company regardless of the ownership rights in the media on which the copies are stored. The Customer shall not acquire any right, title, or interest in the software, documentation, or any information provided by the Company hereunder (including without limitation specifications, descriptive matter, drawings, patents, trademarks, copyrights, and trade secrets).
- The Customer may not sub-license or transfer the software and other Confidential Information of the Company in any way, either in whole or in part, to any third party.
- The Customer may not copy nor permit any party to copy the software and other Confidential Information of the Company.
- The Customer may not modify, de-compile, disassemble or otherwise reverse-engineer the software, or attempt to do any of these; provided that this stipulation shall not be applicable where de-compilation is permitted by law.
- The Customer shall properly insure and pack the goods when same are returned to the Company in terms of the return policy and brochure which are available on request. Repair times are estimates and not binding on the Company. The Customer authorizes the Company to carry out any work and to fit any parts which in the opinion of the Company is necessary to satisfactorily complete the work. If the additional work costs more than the quoted value, then the Company will obtain the Customer’s permission to proceed with said additional work. The Customer agrees that the Company may obtain permission for the above by way of a telephone instruction. If the Company cannot reach the Customer telephonically, then the work will not be carried out.
- Any item delivered to the Company will form the subject of a pledge in favour of the Company for present and past debts and/or the Customer acknowledges an express repairer’s lien in favour of the Company for the amount due in terms of all repairs done.
- The Customer hereby agrees that any item handed in for repair may be sold by the Company to defray the cost of such repairs if the item remains uncollected for 30 (thirty) days of the repairs being completed.
- The Company warrants that all goods purchased in terms hereof will be free of defects provided that should new goods be found to be defective the Customer is entitled to make use of the goods warranty in terms of the goods brochure. The Customer will notify the Company within the warranty period of any defects and the like and provide the Company with proper proof of purchase and the original packaging of the goods. All warrantees are immediately null and void should any defect be as a result of negligence on the part of the Customer if any goods were tampered with or should the seals be broken by anyone other than a duly authorized employee or agent of the Company. Under no circumstances will the Company be liable for damage arising from misuse or abuse of the goods. TheCustomer agrees that the applicable warranty will be void if the Customer does not strictly comply with these terms and conditions and the brochure of the goods.
- All warranty claims shall, further, only be valid if the Customer makes the claim immediately upon becoming aware of a defect in the goods.
- Liability under clause 19 is restricted to the cost of repair or replacement of faulty goods which replacement or repair shall be at the sole discretion of the Company. The cost of transportation of the goods will be borne by the Customer. Further the customer must ensure that adequate insurance cover is in place to cover the movement of equipment between Customer premises and the Company.
- The Company shall be exempted from and shall not be liable under any circumstances whatever for:
22.1. any indirect or consequential damages of any nature, or any loss of profit or special damages of any nature, whether in the contemplation of the parties or not, which the Customer may suffer as a result of any breach by the Company of its obligations under this Agreement;
22.2. any conduct, gross negligence or negligence on its part or that of its employees or agents in carrying out of any of its obligations under this agreement;
22.3. any claim for any alleged short delivery unless written notice of the claim is received from the Customer within 7 (seven) days of delivery.
- The Customer shall not have any claim of any nature whatsoever against the Company for any failure by the Company to carry out any of its obligations under this Agreement as a result of or any cause beyond the control of the Company, including (but not limited to) inability to secure labour, materials, power of supplies, or by reason of an act of God, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or act of State or any other authority.
- The Customer indemnifies the Company, its holding company, directors, employees, agents and affiliates and holds it harmless from all liabilities, claims and expenses including attorney’s fees, of third parties (including but not limited to the Customer’s directors, employees, agents and affiliates) relating to or arising under this Agreement or the use of the equipment that may be made against Company by such third parties or any other person in respect of personal injuries or in respect of any indirect, extrinsic, special or consequential loss or damage of any kind whatsoever or howsoever caused.
- The Customer is responsible for and agrees to pay to the Company all fees and charges in the invoiced currency, without deduction or set-off in respect of any amount howsoever arising or of whatsoever nature.
- The Customer agrees to pay the amount on the invoice:
26.1 at the office of the Company, cash on delivery;
26.2 by means of electronic funds transfer (EFT) prior to delivery;
26.3 if the Customer is an approved Customer, within 30 (thirty) days after the date of the invoices issued by the Company; or
26.4 otherwise as agreed in writing.
- Any amount falling due for payment by the Customer to the Company in terms of or pursuant to this Agreement which is not paid on its due date, may at the discretion of the Company, bear interest at the maximum legal interest rate prescribed in the terms of Law from time to time from date payment is due to date of final payment.
- A certificate issued by the Company and signed on its behalf by any duly authorized person, whose authority need not be proven shall be, prima facie, proof of amounts due and payable to the Company.
- If amounts are not settled on due date the Company may:
29.1 require the immediate payment of all amounts then owed by the Customer for any cause whatsoever;
29.2 suspend the carrying out of any of its then uncompleted obligations owed to the Customer for any cause whatsoever;
29.3 immediately institute action against the Customer at the sole expense of the Customer;
29.4 take possession of any goods delivered to the Customer;
29.5 cancel this Agreement; and/or
29.6 claim damages.
- A party may cancel this Agreement if the other:
30.1 breaches any of the terms or conditions of this Agreement; or
30.2 commits any act of insolvency;
30.3 endeavours to compromise generally with its creditors or does or causes anything to be done which may prejudice the other party’s rights hereunder or at all;
30.4 allows any judgement against it to remain unsettled for more than 10 (ten) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; or
30.5 is placed in liquidation or under judicial management (in either case, whether provisionally or finally) or, being an individual, his estate is sequestrated or voluntarily surrendered; or
30.6 is under Business Rescue or Business Rescue is pending, threatened against it or any steps have been taken, at any time, to commence Business Rescue against it under Chapter 6 of the Companies Act, 2008.
- Upon termination of this Agreement for any reason whatsoever, the Company shall have the right, without prejudice to any other right which it may have, to treat as immediately due and payable all outstanding amounts then owed for any cause whatsoever, to cease performance of its obligations hereunder as well as under any other contract with the Customer until the Customer has remedied the breach, to retake possession of goods where ownership has not passed, in any event, without prejudice to its rights to claim damages.
- The Customer indemnifies the Company completely against any damages whatsoever relating to the removal of repossessed goods.
- The Customer shall be liable for all costs incurred by the Company in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale, whether incurred prior to or during the institution of legal proceedings, or if judgment has been granted, in connection with the satisfaction and enforcement of such judgment.
- The Company will not be required to furnish security in terms of Rule 62 of the Rules of the Magistrate’s Court (No 32 of 1944 as amended).
- Notwithstanding the amount which may at any time be owing by the Customer to the Company, the parties do hereby consent, in terms of Section 45 of the Magistrates Court Act (No 32 of 1944 as amended), to the Jurisdiction of the Magistrate’s Court for the determination of any action or proceeding which may be brought by the Company against the Customer arising out of any transaction between the parties, it being recorded that the Company shall be entitled, but not obliged, to bring any action or proceeding in the said court.
- The Customer shall not be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of this Agreement, in whole or in part, to any other party or person without the prior written consent of the Company, which consent shall not unreasonably be withheld or delayed.
- Any document will be deemed duly presented to a party within:
37.1 14 (fourteen) days of prepaid registered mail to any of the party’s domicilium citandi et executandi;
37.2 4 (four) hours of being emailed to any of the party’s email addresses;
37.3 4 (four) hours of being faxed to any of the party’s fax numbers; or
37.4 1 (one) hour of being delivered by hand to any of the party’s domicilium citandi et executandi.
- The Customer chooses its domicilium citandi et executandi the address on the invoice and the Company its registered address from time to time.
- In the event that the National Credit Act (“the NCA”) applies to any transaction between the Company and the Customer pursuant to the provisions of this Agreement, then-
39.1 if any provision of these terms and conditions are in conflict with the NCA, such conflicting terms and conditions shall not apply;
39.2 The Company and the Customer shall conclude an agreement in compliance with the NCA and the Company shall not be obliged to deliver any goods or provide any services until such agreement is signed;
39.3 The costs and charges which the Company is entitled to recover from the Customer shall be the maximum allowed by the NCA and the Company shall be obliged to comply with the NCA before instituting any legal proceedings against the Customer.
- The Company recognizes that its Customers may be consumers under the Consumer Protection Act and Regulations and in so far as any transactions are protected under the Consumer Protection Act, any clause in respect of such transaction in terms of these terms and conditions shall be interpreted in order to give effect to the Customer’s rights. Likewise, the Customer recognizes and confirms that in so far as they are.
- Subject to any another provisions of this Agreement which have their own breach provisions, should either party (hereinafter referred to as “the Defaulting Party”) commit a breach (including non-compliance with any statutory obligation) of any term of this Agreement and fail to remedy such breach within 7 (seven) days of receipt of a notice to that effect or otherwise be in default of its obligations under or in terms of this Agreement, the other party will be entitled, but not obliged, in addition to any other rights which it may have or remedies which may be available to it –
41.1 to cancel this Agreement forthwith, with or without claiming damages; or
41.2 to obtain an order against the Defaulting Party for specific performance with or without claiming damages.