TRIPLE H IT SOLUTIONS  (PTY) LTD: STANDARD TERMS AND CONDITIONS

1.            INTERPRETATION

1.1.         Clause headings are for convenience and shall not be used in its interpretation

 

1.2.         Unless the context clearly indicates a contract intention, an expression denotes:

1.2.1.     Any gender includes the other gender;

1.2.2.     A natural person includes a juristic person and vice versa;

1.2.3.     The singular includes the plural and vice versa

 

1.3.         The following expressions shall bear the following meaning, unless clearly inconsistent with or otherwise indicated:

1.3.1.     “Credit application” – means the application form presented by Triple H IT Solutions (Pty) Ltd to obtain financial information required for credit vetting;

1.3.2.     “Duly authorised representative” – means the individual authorised to transact on behalf of the parties to this agreement;

1.3.3.     “the Party/ies” – means Triple H IT Solutions (Pty) Ltd and the Customer individually or collectively, as the case may be;

1.3.4.     “Goods” – means any goods or equipment that are supplied to the customer in terms of this agreement;

1.3.5.     “Services” – means any services, support or consultancy provided to the customer in terms of this agreement

1.3.6.     “AFSA” – refers to the Arbitration Foundation of South Africa

 

2.            THESE TERMS AND CONDITIONS TO PREVAIL

2.1.         The terms and conditions contained herein shall constitute the sole terms of agreement between the parties in respect of goods or services purchased or received, and shall operate in respect of any and all business between the parties

 

3.            VARIATIONS AND AMENDMENTS

3.1.         No amendment or consensual cancellation of this agreement or any term thereof, bill of exchange or other document issued or executed pursuant to or in terms of this agreement and no settlement of any disputes arising under this agreement and no extension of time, wavier, relaxation or suspension of any of the terms of this agreement, shall be binding unless recorded in a written document signed by a duly authorised representative of Triple H IT Solutions (Pty) Ltd 

 

3.2.         Any extension, wavier, relaxation or suspension which is given or made, shall be strictly construed as relating to the matter in respect of which it was given or made

 

3.3.         No extension, wavier, relaxation or suspension, bill of exchange or other document issued or executed pursuant to or in terms of this agreement,  shall operate as an estoppel against the supplier in respect of its rights under this agreement, nor shall it operate so as to preclude Triple H IT Solutions (Pty) Ltd  from exercising its rights strictly in accordance with this agreement

 

3.4.         Triple H IT Solutions (Pty) Ltd  shall be bound by any express or implied term, representation, warranty, promise or the like, if such representation is given in written form and agreed upon by the parties

 

3.5.         No person other than the duly authorised representative of the parties has any authority to delete, amend or in any respect vary any of these conditions or accept any other conditions or agree to a consensual cancellation hereof

 

4.            QUOTATIONS

4.1.         A quotation is only valid for the period specified and may be revoked at any time by the supplier in the event of non-availability of the specified goods, the customer will be informed in advance of any changes. Triple H IT Solutions (Pty) Ltd  may accept or reject in whole or in part any order placed upon it by the customer pursuant to the quotation

 

4.2.         The quotation is based on rates of exchange, freight charges, insurance, railage, costs of labour and materials and other charges ruling at the date/term of the quotation. Any variations occurring subsequent to the date/term of the quotation in any of the aforesaid rates or charges, as the case may be, shall entitle Triple H IT Solutions (Pty) Ltd  to vary the amount of the quotation accordingly in which the customer will be aware of.

 

5.            PLACING OF ORDERS

5.1.         Triple H IT Solutions (Pty) Ltd shall give written confirmation for the PO(s) released by the Customer within three (3) business days of its issuance by Customer. If any act or deed by Triple H IT Solutions (Pty) Ltd is done in relation to the PO it will be construed as acceptance of the PO even though there is no formal written acceptance

 

5.2.         Any order shall, upon acceptance thereof by the supplier, be irrevocable by the customer. Any amendment or cancellation will require the consent of both the customer and supplier. In the event of any amendment or cancellation, the customer will be liable for any additional reasonable costs incurred, which the supplier may incur due to cancellation of the order or additional costs for the amending of the order. The additional costs will be charged to the customer upon consent of both the customer and supplier. The customer shall issue a Purchase order, which will always be deemed to be an extension of, and an integral part of the Agreement.

 

6.            PURCHASE PRICE AND PAYMENT

6.1.         Orders are accepted by Triple H IT Solutions (Pty) Ltd  only on the basis that the prices charged would be those ruling at the date of order of the goods or term of the quotation period, unless otherwise expressly stated in writing

 

6.2.         Unless otherwise expressly stated in writing, prices are exclusive of value added tax which shall be for the account of the customer unless the customer has given acceptable proof to the supplier that the supply is a zero rated or an exempt supply. The customer shall pay or reimburse to the supplier the amount of any value added tax simultaneously with the purchase price

 

6.3.         The customer shall be obliged to pay to Triple H IT Solutions (Pty) Ltd  in addition to the contract price herein:

6.3.1.     The amount of any tax, duty or other charge of any nature whatsoever imposed by any law, regulation or    enactment of whatsoever nature which comes into force on a date after the date on which any price charged is determined;

 

6.3.2.     Any other additional costs of any nature whatsoever arising due to factors beyond the control of the supplier. In particular, but without limiting the generality of the foregoing, the supplier shall be entitled to increase the purchase price in respect of any goods supplied in order to make provision for any increases in cost arising as a result of or during the period of any delay caused by the customer. The additional cost must be agreed upon by both the parties to this agreement, which will not be unreasonably  disputed by the parties

 

6.4.         The purchase price in respect of any goods or services sold or provided to the customer in terms of this agreement shall be payable:

 

6.5.         By the customer via EFT transfer to the bank account of the supplier. All EFT payment notifications must be sent through to the supplier and will be deemed paid upon receipt and clearance of the funds into the supplier’s bank account.

 

6.5.1.     No cheques  sent to the supplier through the post shall be deemed as received unless and until actually received by the supplier and funds cleared into the supplier’s bank account

 

6.5.2.     Any foreign currency transactions which are subjected to bank charges will be for the account of the customer. Should any withholding tax be applicable, a certificate, indicating the taxation withheld, from the foreign country’s Revenue service is required;

 

6.5.3.     In South African currency without deduction or set-off and free of any exchange; and

 

6.5.4.     On or before the expiry of the payment terms indicated on the application which is annexed hereto, which shall commence upon the issuing of an invoice by the supplier, or if there is no credit period indicated or approved, payment via EFT transfer upon placement of order

 

6.6.         After the completion of the application by the customer, the supplier shall, at its own discretion, be entitled to:

6.6.1.     Make such enquiries, as it may deem necessary to determine the creditworthiness of the customer;

 

6.6.2.     Determine whether or not to grant the customer credit as applied for in the application; and

 

6.6.3.     Inform the customer of the determination made pursuant to 6.5.2 above

 

6.7.         Until such determination in terms of 6.5.2 above is made, any goods and/or services supplied to the customer shall be supplied upon receipt of payment for the order placed only

 

6.8.         The customer has no right to withhold payment by virtue of any alleged counterclaim against the supplier. Should payment be withheld due to a query on the invoice, upon resolution of the query, payment for the invoice must be effected immediately

 

6.9.         The customer hereby agrees that any item handed in for repair may be sold by the supplier to defray the cost of such repairs and the supplier’s usual storage costs, if the item remains uncollected within three months of the repair being completed. The supplier shall provide the customer with sufficient notification of the items repaired and awaiting collection

 

6.10.      Should an invoice become overdue , interest will be charged at the prevailing overdraft rate of First Rand Bank Limited plus 2% compounded monthly on all overdue amounts

 

6.11.      Legal fees accrued in recovering any overdue amounts shall be for the account of the customer in full.

 

7.            ARBITRATION

7.1.         The parties agree that any dispute under this Agreement shall be submitted to arbitration for exclusive resolution.  Arbitration shall occur in accordance with the AFSA Rules of Arbitration

 

7.2.         The result of the arbitration shall be final and binding to both parties of this agreement

 

8.            REPAIRS

8.1.         Any repair times given by the supplier are merely estimates and the supplier shall not be bound thereby

 

8.2.         Every effort will be made to get the item repaired within a reasonable time subject to the availability of spares

 

8.3.         Once the fault is identified, the quote given to the customer for the repair shall be deemed final, unless further faults are identified, in which case further costs may be levied. These will be discussed prior to commencement of repairs

 

9.            IMPORTED GOODS

9.1.         Where the goods or any part thereof are to be imported, this agreement is subject to the condition that the customer’s order is accepted and confirmed by the supplier’s own supplier and that delivery is made in due course

 

10.          DELIVERY

10.1.      Any delivery date indicated by the supplier shall merely be regarded as the estimated date of delivery and shall not bind the supplier to effect delivery on or before such date. Delivery will be effected within a reasonable timeframe or as agreed upon by both parties

 

10.2.      If delivery of any particular order is to be effected in consignments, the supplier shall not be obliged to deliver any part of the order until the purchase price, which is due in respect of the part of the order that has already been delivered has been paid, unless agreed upon by both parties

 

10.3.      If the goods are to be delivered by road, the customer shall be obliged to procure that the delivery destination shall be easily accessible to road transport vehicles, where necessary the customer will allow the supplier to park any vehicles on their premises for the purpose of delivery

 

10.4.      The customer shall be obliged to inspect all goods upon delivery and endorse the delivery note as to any missing or damaged goods. No claims for missing or damaged goods shall be valid unless the delivery note has been endorsed as aforesaid and unless, in addition, the customer notifies the supplier in writing within 3 days of the delivery of the goods of the claim in question and the goods relating to such claim, furnishing full details in regard thereto. The customer shall bear the onus of proving that upon delivery, any goods are missing or damaged or that the customer’s order was in any way not complied with. The supplier will ensure that all goods are delivered in good working condition, failing which a “Dead-On-Arrival” process will be initiated with the supplier’s supplier. The “Dead-On-Arrival” process can only be initiated within 7 business days from date of delivery of goods

10.5.      If the supplier is unable to deliver the goods to the customer due to any act or omission on the part of the customer, the supplier shall be entitled to charge the customer for the storage of the goods. Delivery will be carried out during normal business hours unless specified by the customer, in which case, additional charges may be levied for the account of the customer. These additional charges shall be agreed upon by both parties

 

10.6.      The customer shall be obliged to furnish information necessary to enable delivery of the relevant goods to be effected and if the customer fails or refuses to do so, or if it fails or refuses to take delivery, the goods shall, without prejudice to the provisions of  10.7, be deemed to have been delivered to the customer upon notification by the supplier to the customer to that effect

 

10.7.      If the parties agree to engage a third party to transport the goods, the supplier is hereby authorised to engage a third party on the customer’s behalf and on the terms deemed fit by the parties. The customer hereby indemnifies the supplier against any claims that may arise from such agreement

 

11.          WARRANTIES AND GUARANTEES

11.1.      Warranties, guarantees or representations (express or implied), which are not set out in this agreement, shall not be binding on the supplier. Any warranties or extended warranties taken by the customer shall be for the account of the original equipment manufacturer and not for the supplier.

 

11.2.      Parties agree that the supplier shall have no liability in respect of any injury, loss or damage (direct, indirect or consequential) arising out of the use of, or inability to use, the goods and whether or not occasioned by the supplier’s negligence  or any act or omission on its part. For the purposes hereof, any reference to the supplier shall include its servants, agents or contractors or any person for whose acts or omissions the supplier may be liable in law

 

11.3.      The supplier shall be relieved of all obligations in terms of this clause, if:

11.3.1.   Repairs or modifications have been made by persons other than the supplier, unless such repairs or modifications are made with the prior written consent of the original equipment manufacturer;

 

11.3.2.   Any goods are operated with any accessory, equipment or part not specifically supplied or approved in writing by the original equipment manufacturer;

 

11.3.3.   The goods have not been operated or maintained in accordance with the original equipment manufacturer’s instruction, or under normal use;

 

11.3.4.   The goods have not been properly installed per the original equipment manufacturer’s instruction

 

11.4.      If repairs or replacements are effected by the supplier, only the parts actually worked on and not the complete goods shall be subject to a new guarantee

 

11.5.      Customers who acquire goods for the purpose of on-selling those goods, whether that customer is permitted to do so or not   (note: no terms contained in this agreement shall be deemed to allow that customer to on-sell goods acquired from the supplier whilst ownership vests in the supplier), shall not advertise or issue or in any other way give or make any warranties, guarantees or representations as to the goods in any form whatsoever or offer to do so, which could result in liability being imposed upon the supplier

 

12.          HANDLING FEE ON RETURN OF GOODS

12.1.      The supplier reserves the right to levy a handling fee of 15% of the purchase price of the relevant goods, on such goods returned to and accepted by the supplier

 

12.2.      The supplier is not obliged to accept the return of any goods and this clause shall not be used to imply that the supplier shall be obliged to accept the return of goods

 

13.          AVAILABILITY OF IMPORT PERMITS

13.1.      The supplier obligations as detailed in this agreement shall be subject to the availability of an import permit for all cases where goods ordered or part thereof are to be imported

 

 

14.          OWNERSHIP AND RISK

14.1.      All products supplied shall remain the property of Aptronics (Pty)Ltd until the contract price (including interest, if applicable) in respect of the goods in question has been paid in full

 

14.2.      Risk in the product will transfer to the customer on delivery

 

15.          SUBSTITUTE GOODS OR PARTS

15.1.      The supplier shall be entitled to substitute, for any goods or parts specified in the customer’s order, such other goods, which the customer, in his sole discretion, may regard as suitable substitutes

 

15.2.      Any amendments or alterations to the required specifications will require the consent of both parties to this agreement

 

16.          DOCUMENTATION

16.1.      All specifications, descriptive matter, drawings or other documents furnished by the supplier do not form part of the contract and may not be relied upon, unless they are agreed in writing by the supplier

 

16.2.      All specifications, descriptive matter, drawings or other documents furnished by the supplier,  which form part of the contract, are approximate only and the supplier cannot be held responsible for any losses incurred by the customer due to discrepancies therein

 

17.          BREACH

17.1.      Subject to clause 18.2, if the customer breaches any of the terms or conditions of this agreement or any other agreement with the supplier or fails to pay any amount payable by it on due date or commits any act of insolvency or endeavours to compromise generally with its creditors or acts in a manner which may prejudice the supplier’s rights, or allows any judgment against it to remain unsatisfied for 7 days or is placed into provisional or final liquidation or judicial management or under provisional or final sequestration or if his estate is voluntarily surrendered, the supplier shall have the right, without prejudice to any other right which it may have against the customer, to elect to:

 

17.1.1.   Treat as immediately due and payable, all outstanding amounts which would otherwise become due and payable over the unexpired period of the agreement and to claim such amounts as well as any other amounts in arrear including interest and to cease performance of its obligations under this agreement as well as under any other contract with the customer until the customer has remedied the breach;

 

17.1.2.   Cancel this agreement and retake possession of any of the goods sold which have not yet been paid for

 

17.2.      The customer has no claim against the supplier unless the customer provides  the supplier with 30 days written notice of any breach or defect

 

17.3.      Either party shall have the right to institute any action in either the relevant Magistrate’s court or the High court

 

18.          DOMICILIUM AND NOTICES

18.1.      The parties choose domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purpose arising from this agreement at their addresses and tele-facsimile numbers as set out in the customer credit application form

 

18.2.      Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office box

 

18.3.      Any notice given and any payment made by any party to any other (“the addressee”) shall be in writing and if:

18.3.1.   Delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;

 

18.3.2.   Posted by prepaid post from an address to an addressee at the addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the fourth day after the date of posting;

 

18.3.3.   Transmitted by facsimile from an address to the addressee at the addressee’s facsimile address for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the address on the first business day after the date of transmission

 

18.3.4.   Transmitted by email from an email address to the addressee at the addressee’s email address for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the address on the first business day after the date of transmission

 

19.          CESSION

19.1.      The customer shall not be entitled to cede or assign any rights and/or obligations, which it may have in terms of this agreement to any third party

 

20.          SECURITY FOR OBLIGATIONS

20.1.      The supplier reserves the right to require satisfactory security from the customer for the due performance of any of the customer’s obligations hereunder including but not limited to the payment of the purchase price. If the suppliers so requires, the customer shall deliver to the supplier prior to the supplier complying with any of its obligations hereunder, confirmed irrevocable letters of credit by financial institute acceptable to the supplier. If such security or guarantees or letters of credit are not furnished within 7 days after any such demand, the supplier shall be entitled to withdraw from the contract in whole or in part as discussed in Clause 1

21.          SEVERABILITY

21.1.      Each paragraph or clause in this agreement is deemed separate from each other

 

21.2.      If any paragraph or clause is found, by a competent court, to be defective or unenforceable for any reason whatsoever, the remaining paragraphs or clauses shall be of full force and effect

 

22.          FORCE MAJEURE

22.1.      Any transaction is subject to cancellation by the supplier due to force majeure from any cause beyond the control of the supplier, including, without restricting the generality of the foregoing inability to secure labour, power materials or supplies, or by reason of an act of God war, civil disturbances, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation

 

23.          FURNISHING OF INFORMATION BY CUSTOMER

23.1.      The customer shall furnish the supplier with all information reasonably required by the supplier to enable it to transact with its customer

 

24.          THE CUSTOMER RECRUITMENT OF THE SUPPLIER’S EMPLOYEES

24.1       Where the Customer recruits an employee of the Supplier to perform services directly for the Customer, whether on a contractual or permanent employment basis, and such recruitment leads to the employee terminating his employment with the Supplier, where such recruitment takes place during or six calendar months thereafter the period of agreement, the customer: 

 

24.1.1    Shall be immediately liable for the payment to the Supplier of 100% of the employees annual remuneration package as paid by the Supplier to the employee, inclusive of all benefits and allowances