Terms and Conditions of Sale
In these terms and conditions:-
The goods means the goods as indicated on any company forms, price lists, quotations, orders or invoices.
1. PRICES & QUOTATIONS
1.1 The price of the goods sold or services rendered shall be the usual price set out in the Seller’s invoice to the Customer at the time of the sale of the goods.
1.2 Quotations remain valid for a period of 7 (seven) days from date of the quotation, or until the date of issue of a new price in respect of goods, whichever occurs first. All quotations are subject to availability of goods.
1.3 The validity of any price quoted is subject to availability and to any increases in the cost price of the Supplier before dispatch of goods. Quotes are subject to exchange rate fluctuation.
1.4 Quotations may be changed at any time before acceptance by the Customer.
1.5 The price of the goods sold to the Customer is strictly net and not subject to any discounts unless otherwise agreed.
1.6 Discounts, agreed to in writing by the Seller, and shall only apply if payment is received by the Seller by the due date. The agreed discount will be on the net price of the goods only, and not in respect of value added tax, transport costs, storage charges, insurance, duties or taxes.
1.7 Applied discounts are subject to vendor approval confirmation.
2.1 Payment terms are strictly Cash on Delivery (“COD”), save where the Customer is a credit approved customer to which payment terms will follow as per the credit agreement.
2.1.1 Software sold is strictly Cash on Delivery (“COD”) and is not included under credit. Once software is issued/registered is non-returnable.
2.2 In respect of COD Customer & software orderss, payment shall be due on acceptance of quotation.
2.3 The Customer agrees to pay the amount reflected on the Seller’s invoice and shall not be entitled to claim set off or deduction in respect of any payment due by the Customer to the Seller for goods supplied or services rendered.
2.4 The Seller may appropriate and/or allocate all payments made by the Customer to such accounts as the Seller, in its sole and absolute discretion, decides.
2.5 The Seller shall have the right to suspend deliveries without notification and to exercise its rights in terms of clause 3 if any amount due by the Customer is unpaid.
2.6 The Customer agrees that if any amount owed by it is not settled in full (a) on demand; or (b) within the period agreed in clauses 2.1 and/or 2.2 above the Seller will be entitled to:-
2.6.1 Immediately institute action against the Customer; and/or
2.6.2 Cancel the sale and take possession of any goods delivered to the Customer, including goods sold, disposed of or installed by the Customer, which have not been paid for in full, and claim damages. These remedies are without prejudice to any of the Seller’s other rights.
2.7 Should any amount not be paid by the Customer on due date, then the full outstanding amount in respect of all purchases by the Customer shall immediately become due, owing and payable irrespective of the dates when the goods were purchased, and the Customer shall be liable to pay interest in respect of amounts unpaid at the maximum legal interest rates prescribed in terms of the Usury Act. Interest shall be calculated from the due date of such payment to the date of final payment thereof.
2.8 The following terms in relation to all payments apply:
2.8.1 No cheques / third party cheques will be accepted.
2.8.2 Electronic transfers must reflect on the Seller’s bank account, regardless of value, before goods are released (in the case of a COD Customer).
2.8.3 Acceptable methods of payment are:
188.8.131.52 Electronic Funds Transfer;
184.108.40.206 Cash / cash deposits
3. WITHDRAWAL OF CREDIT FACILITIES
3.1 The Seller reserves the right to withdraw any credit facility at any time without prior notice, and the nature and extent of such facility shall at all times be at the Seller's sole discretion.
3.2 Despite the fact that the Seller may grant the Customer a credit limit or a credit facility up to a certain amount, the Seller reserves the right to increase or decrease this amount at its sole discretion. The credit limit shall not be deemed to be the limit of a Customer's indebtedness to the Seller.
4.1 If the Customer is a COD Customer or is a credit approved Customer whose credit terms are not sufficient to cover the cost of the order, the Customer shall pay a deposit on acceptance by the Seller of the Customer’s purchase order on the following terms:
4.1.1 When a COD Customer places an order which requires the Seller to place an order with a Manufacturer in order to fulfil the Customer order (i.e. not in the Seller’s available stock when you place your order), then:
220.127.116.11 For software licenses’, the Customer will be required to pay a deposit of 100% of the invoice amount/s for software licenses;
18.104.22.168 For other goods the Customer will be required to pay a deposit of 50% of the invoice amount/s for the goods.
4.1.2 The deposit is refundable if the Seller cannot deliver, but is not refundable under the following circumstances:
22.214.171.124 If the Customer cancels or varies, or indicates to cancel or vary, its order, while the Seller has an open, irrevocable order with the
126.96.36.199 If the Customer fails to pay the remaining portion of the order value within 14 calendar days after the Seller has provided notification to the
Customer that the goods are available for collection or delivery.
4.1.3 The deposit forfeited under the above circumstances shall be forfeited as a pre-estimation of the damages suffered by the Seller, without prejudice to any other rights that the Seller may have, including, without limitation, the right to cancel the contract, reclaim if it so wishes any goods already delivered to the Customer, claim the balance from the Customer or to claim further damages from the Customer.
5.1 It is the sole responsibility of the Customer to determine that the goods or services ordered are suitable for the purpose of intended use.
5.2 The person placing/signing orders with DataTegra hereby agrees that their said company has given them the authority to place/sign orders on their company’s behalf. Purchase orders/signed DataTegra quotations received by DataTegra will be deemed legally binding whereby the client agrees to pay; according to stipulated payment terms; for the goods and accept the goods from DataTegra as and when the goods are made available.
5.3 The Seller will accept written orders only. All such orders and any variations to orders agreed in writing will be binding, subject to these terms and conditions, and may not be cancelled without written consent from the Seller.
5.4 Should the Customer purport to attach any conditions to or in respect of any business conducted from time to time which vary, amend or are in conflict with a term or condition set out herein, then notwithstanding anything to the contrary stipulated by the Customer, the unamended terms and conditions set out herein shall prevail and be of full force and effect.
5.5 Any term contained in the purchase order which seeks to provide for cancellation in the event of the Seller’s failure to deliver within a specified period of time shall be of no force and effect.
5.6 Orders shall constitute irrevocable offers to purchase the specified goods at the usual prices of the Seller as at the date when the Customer places the order for goods, and the order shall be capable of acceptance by the Seller for the delivery of the goods, by written acceptance or confirmation of the order.
6.1 The Customer and/or its authorized representative and/or its nominated agent, in signing the delivery note/waybill/e-mail, thereby confirms that the goods were indeed delivered and inspected, and that the Customer is satisfied and confirms that the goods delivered duly represent, in quantity and quality, the goods ordered by the Customer at the prices agreed as reflected on the invoice issued, and that the Customer is satisfied that the goods are free from any defects.
6.2 Any delivery note/waybill/e-mail (copy or original) in the possession of the Seller and purportedly signed by the Customer and/or its authorized representative and/or its nominated agent, shall be prima facie (legitimate) proof for the purposes of any litigation on its mere production in evidence.
6.3 The Seller shall be entitled to split the delivery of the goods ordered in the quantities and on the dates it decides, with the prior consent of the Customer, which consent shall not be unreasonably withheld.
6.4 The Seller is entitled to engage a third party on its behalf to transport all goods purchased by the Customer to the delivery address stipulated by the Customer.
6.5 Should the Customer wish to receive delivery of the goods by a more expensive method of transportation than that normally engaged by the Seller, the Customer shall make such request in writing and, in the event that the Seller agrees to arrange such special delivery, the additional charges shall be debited to the Customer’s account and shall become payable by the Customer on delivery of the goods.
6.6 The Seller does not guarantee that the goods will be delivered on any particular date or time, and the Customer shall not have any right of action against the Seller in respect of any loss occasioned by any reasonable delay in delivery of any goods and/or services rendered, nor may the Customer cancel any order by reason of such reasonable delay.
6.7 Whilst every effort will be made to dispatch goods as advised, the Seller does not guarantee dispatch on any specific date or time and shall not be liable for any damages of any nature whatsoever for failure to effect delivery or timeous dispatch for any reason beyond the Seller’s reasonable control, including but not limited to inability to secure transport, labour, power, materials, equipment or supplies or by any reason of any act of God, war, civil disturbance, riot, state of emergency, strike, lock out or other labour dispute, fire, flood, drought or legislation. The Customer shall not be entitled to cancel any order by reason of such delay.
6.8 Short delivery of and/or defects in the goods have to be notified in writing to the Seller’s head office within 7 (seven) calendar days of delivery of the goods, failing which the Seller will not be liable to entertain any such claim.
6.9 Where the Seller is requested by the Customer to withhold or postpone delivery, in the event that the Seller agrees to do so, all the risk in and to all ordered goods shall pass to the Customer on the date of the Seller agreeing to such a request and the Customer shall pay the costs of storage, demurrage, interest, insurance and any other charges occasioned by the postponement of delivery.
6.10 A charge is levied for all deliveries. This charge may be determined and amended from time to time based on courier cost increases at the sole discretion of the Seller.
6.11 This charge can be levied, at the Seller’s sole discretion, even if not included on the quote as the delivery details may not be available at the time of quote.
6.12 The Seller will use its best endeavours to accommodate any other delivery requirements of the Customer at the cost of the Customer.
7. OWNERSHIP AND RISK
7.1 All risk of damage, loss or destruction in and to all goods sold by the Seller to the Customer shall pass to the Customer on delivery, however, ownership in all goods sold and delivered shall remain vested in the Seller until the full purchase price has been paid, and in the event of a breach of these terms and conditions by the Customer, or if the Customer is sequestrated or placed under liquidation or judicial management or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy a judgment granted against it within 3 (three) calendar days of the date of judgment or changes the structure of its ownership, the Seller shall be entitled to take possession of the goods irrespective of whether or not the goods have been installed without prejudice to any further rights vested in the Seller. The Customer hereby indemnifies the Seller against all claims, losses, damages, liabilities and expenses of whatsoever nature, including consequential claims, should the Seller remove goods as a result of non-payment on the part of the Customer. Nothing contained in this clause precludes the Seller from proceeding in terms of this clause with a Court order.
7.2 Prior to delivery, the Customer shall adequately insure the goods to be delivered and/or supplied by the Seller against any form of loss or damage until the full purchase price has been paid by the Customer to the Seller for such goods. Pending payment to the Seller for goods purchased, all the benefits in terms of the insurance policy relating to the insurance of such goods are hereby ceded to the Seller.
7.3 The Customer shall inform the landlord of the premises at which the goods are kept that such goods are the sole and absolute property of the Seller until such time as the full purchase price has been paid to the Seller by the Customer.
7.4 The Customer hereby indemnifies the Seller against all claims, losses, damages, liabilities and expenses of whatsoever nature, including consequential claims, arising from or in connection with, the Customer failing to comply with its obligations in terms of this clause 7.
7.5 The Customer acknowledges all copyrights and trademarks and shall not duplicate copyrighted material and each attempt shall immediately render the full prevailing price payable to the Seller.
8. RETURNED GOODS AND ORDER CANCELLATIONS
8.1 The Seller is under no obligation to accept the return of goods. If, however, the goods are defined by the Seller as stocked items, and were purchased from the Seller, then the Customer may apply to the Seller, within 7 days from receipt of the goods, for permission to return goods. If written permission is given by the Seller for such return, then it will be on the following basis:
8.1.1 Goods, save for the goods dealt with clause 8.1.4 & 8.2 below, will be accepted for credit, subject to a restocking charge of 15% (fifteen percent) of the invoice price of the goods so returned if the goods are delivered to the Seller’s Head Office, Customer Services, within 21 (twenty one) calendar days of delivery, unused, with sealed disk packs, original contents and shrink wrapping intact.
8.1.2 No goods returned to the Seller after a period of 21 (twenty one) calendar days from delivery will be accepted for credit.
8.1.3 Goods returned for credit will only be accepted from those Customers who initially purchased the stock from the Seller.
8.1.4 Goods defined as non-stocked items or goods specifically ordered for the Customer (Back-to-Back orders) will not be accepted by the Seller for credit.
8.1.5 If on inspection of the returned goods the Seller’s Customer Services determine that the goods have been opened or used or that the sealed disk packs, contents and shrink wrap are not intact, the Seller will be under no obligation to accept the returned goods, however, the Seller may at their sole and absolute discretion agree to accept the goods and a restocking charge of 50% (Fifty percent) of the invoice price of the goods so returned will be payable by the Customer to the Seller.
8.2 Software is not deemed as stocked items. Software is registered in the customer’s name and once licenses are issued/registered the software is non-refundable.
8.3 Purchase orders issued to the Seller may not be cancelled. The Seller may at their sole and absolute discretion agree to the cancellation of an order received from the Customer. Such a decision will be based on whether the Seller is in a position to cancel its order with the Manufacturer for the supply of those goods and if the item is a regularly stocked item. Any relaxation of this no cancellation policy in any one instance should not be construed as a change to the standard terms and conditions.
9. REFUND POLICY
9.1 If goods are accepted for return, subject to clause 8 above, electronic fund transfers, cash payments will require a 7 working days administrative period. All requests for refund to be submitted in writing to the debtors administration clerk and must include proof of the Customer’s banking information by means of a current bank letter or cancelled cheque.
10. NEGOTIABLE INSTRUMENTS
10.1 Acceptance of a promissory note, bill of exchange or any other negotiable instrument by the Seller from the Customer shall not be deemed to be a waiver of the Seller’s rights under these terms and conditions. In relation to cheque(s) furnished by the Customer to the Seller, the Customer waives its rights to insist on notice of dishonour or protest being given to it in the event of the cheque being dishonoured.
11.1 Subject to the provisions of clauses 2 and 7 above, in the event of a breach by the Customer of any of these terms and conditions, and should the Customer fail to remedy such breach within 48 (forty eight) hours after receipt of notice to that effect from the Seller, or should the Customer repeatedly breach any of these terms and conditions in such manner as to justify the Seller in holding that the Customer's conduct is inconsistent with the intention or ability of the Customer to carry out these terms and conditions, or if the Customer is sequestrated or placed under liquidation or enters judicial management or commits any act of insolvency or enters into a compromise with its creditors or fails to satisfy a judgment granted against it within 3 (three) calendar days of the date of judgment or changes the structure of its ownership, the Seller shall be entitled to cancel these terms and conditions forthwith and without prejudice to its right to claim specific performance and/or damages.
11.2 The Seller’s rights in terms of clause 11.1 shall not be exhaustive and shall be in addition to its common law rights or any other right it has in terms of these terms and conditions.
11.3 No claim, except as provided in clause 8, against the Seller, pursuant to these terms and conditions, will arise unless the Customer has, within 7 (seven) calendar days of the alleged breach or defect occurring, given the Seller 30 (thirty) calendar days written notice to rectify any defect or breach of these terms and conditions.
12. WARRANTIES, REPRESENTATIONS & INDEMNITIES
12.1 The Seller makes no warranties or representations to the Customer regarding the goods or their fitness for a particular purpose other than those contained in the manufacturer’s product specific warranty as at the time of delivery or collection of the goods.
12.2 Services; excluding installation; carry no guarantees whatsoever.
12.3 All installation warranties and guarantees are specified in the installation service agreements with the Customer.
12.4 Liability under clause 12.1 is restricted to the cost of repair or replacement of faulty goods or granting of a credit at the sole discretion of the Seller.
12.5 It is the duty of the Customer to return any defective goods to the premises of the Seller at the Customer’s own cost within 21 days. License returns are in terms of the Sellers vendor agreements and can vary from a no return policy to a limited return period. They are subject to change from time to time.
12.6 All guarantees are immediately null and void, should any equipment be tampered with, or should the “seals” on equipment be broken by anyone other than the Seller or its appointed nominee, or should the goods be operated outside the manufacturer’s specifications.
12.7 To be a valid guarantee, claims must be supported by the tax invoice, and the goods must be in their original packaging and must be accompanied by all accessories and manuals, which must be intact and a written report/description of the fault the Customer is experiencing.
12.8 No warranties other than those provided in these Terms and Conditions, express or implied, shall apply. The Seller specifically disclaims the implied warranty of merchantability or fitness for a particular purpose. No representation or warranty, including but not limited to statements of capacity and suitability for use or performance, made by employees of the Seller shall be considered to be a warranty by or binding on the Seller. Any such statements shall not give rise to any liability of whatsoever nature on the part of the Seller. The Seller, its employees, subcontractors or subsidiaries renounce all liability in respect of the Seller’s special, indirect or consequential damages including but not limited to loss of profits.
12.9 Under no circumstance will the Seller be liable for any damage arising from any misuse of the goods supplied and/or services rendered.
12.10 The Customer agrees that neither the Seller nor any of its employees will be liable for any negligent or innocent misrepresentations made to the Customer, nor shall the Customer be entitled to cancel any contract on those grounds.
13.1 Any liability arising in terms of the manufacturer’s warranty is restricted to the cost of repair or replacement of faulty goods or granting of a credit at the sole discretion of the Seller.
13.2 In the case of repairs undertaken by the Seller, repair times given are merely estimates and are not binding on the Seller.
14. LIMITATION OF LIABILITY
14.1 The Seller shall not be liable for any loss, injury, death, damage, costs, expenses, loss of profits or other special damages or any consequential loss or other damages arising from any cause whatsoever (whether or not the Seller is negligent or grossly negligent) suffered or incurred by the Customer and/or its employees, contractors, sub-contractors, agents, authorised representatives and/or any third party.
14.2 The Customer indemnifies and holds harmless the Seller for any claims described in clause 13.1 above instituted by the Customer and/or its employees, contractors, sub-contractors, agents, authorized representatives and/or any third party.
15. LEGAL PROCEEDINGS
15.1 In the event of the Customer breaching any of its obligations and/or failing to timeously make payment of any amount due to the Seller, the Customer agrees to pay, and shall be liable to pay, all legal costs incurred by the Seller in enforcing its rights in terms of these terms and conditions on the attorney/own client scale including collection charges, tracing agent's fees, air fares and expert's witness fees.
15.2 The Seller shall have the right at its sole discretion to institute any action arising out of or in connection with these conditions and/or any business dealings with the Customer in any Magistrate’s Court having jurisdiction notwithstanding that the cause of action may exceed the jurisdiction of that court and the Customer hereby consents to the jurisdiction of the Magistrate’s Court for this purpose. Nothing herein contained, however, shall preclude the Seller from electing to institute action in the appropriate High Court having jurisdiction.
15.3 These terms and conditions shall be governed and construed according to the laws of the Republic of South Africa and shall be subject to the exclusive jurisdiction of the courts of the Republic of South Africa.
16. NOTICES & DOMICILIUM CITANDI ET EXECUTANDI
16.1 Any document will be deemed duly received by the Customer within:-
16.1.1 3(three) working days of pre-paid registered mail to any of the Customer's business or postal addresses or the domicilium address of the Customer, or to the personal address of any director, member or owner of the Customer; or
188.8.131.52 24 (twenty four) hours of being faxed to any of the Customer's fax numbers, or any director, member or owner's fax numbers; or
184.108.40.206 24 (twenty four) hours on being delivered by hand to the Customer or any director, member or owner of the Customer; or
220.127.116.11 48 (forty eight) hours if sent by overnight courier; or
18.104.22.168 24 (twenty four) hours of being telefaxed and/or e-mailed to the Customer's fax number and/or e-mail address.
16.2 The Customer hereby chooses its domicilium citandi et executandi (physical address for serving of court notices, other legal documentation or communications) for all purposes under these terms and conditions as the physical address as set out on Page 1 of the agreement to which these terms and conditions are attached. The Seller hereby chooses its domicilium citandi et executandi (physical address for serving of court notices, other legal documentation or communications) for all purposes under the agreement to which these terms and conditions are attached as 86 John Vorster Drive, Microtek Business Park, Randpark Ridge.
17. DISCLOSURE OF INFORMATION
17.1 The Customer understands that the information given to DataTegra through any means is to be used by the Seller for the purposes of assessing his credit worthiness. The Customer confirms that the information given by him in this credit application form is accurate and complete. The Customer further agrees to update the information supplied, as and when necessary, in order to ensure the accuracy of the above information, failing which the Seller will not be liable for any errors or mistakes resulting there from.
17.2 The Seller has the Customer's consent, at any time, to contact and request information from any persons, credit bureaus or businesses, including those mentioned in the credit application form and to obtain any information relevant to the Customer's credit assessment.
17.3 The Customer agrees and understands that information pertaining to the Customer and given in confidence to the Seller by a third party will not be disclosed to the Customer.
17.4 The Customer hereby consents and authorizes the Seller, at any time, to furnish credit information concerning the Customer’s dealing with the Seller to a credit bureau and to any third party seeking a trade reference regarding the Customer in his dealings with the Seller.
18. NATIONAL CREDIT ACT 34 OF 2005 – WARRANTY BY CUSTOMER
18.1 The Customer by acceptance of DataTegra orders/quotation hereto warrants that at the date of acceptance and each date which the Customer purchases goods from the Seller that:
18.1.1 The aggregate annual sales or turnover of the Customer exceeds R2,000,000 (Two million rand); and/or
18.1.2 The net asset value of the Customer exceeds R2,000,000 (Two million rand).
18.2 The Customer hereby irrevocably unconditionally agrees to indemnify and keep indemnified, the Seller, on demand, for any and all, liabilities, damages, penalties, actions, judgments, costs, expenses or disbursement of any kind whatsoever which may be imposed on, incurred by or asserted against the Seller in any way resulting from or arising of a breach of any warranty contained in clause 17.1 above.
19. CESSION OF DEBTORS
19.1 The Customer hereby irrevocably cedes, assigns and transfers, makes over unto and in favour of the Seller, all the Customer’s right title and interest in and to its claims against its debtors, both present and future and from whatsoever cause arising, as security for all or any of the amounts which the Customer may now or at any time in the future owe to the Seller.
19.2 The Customer irrevocably and in terms hereof authorises the Seller in its absolute discretion to claim from all or any of the Customer’s debtors the whole or any portion of the indebtedness or give a valid receipt for discharge for such indebtedness, to take any action in its name in any court of competent jurisdiction and to proceed in execution thereunder against all or any of the said debtors to cede, transfer, negotiate, pledge or otherwise deal with all or any of the said debtors, to exchange promissory notes, cheques, agreements, documents of title or any other security held by the Customer.
19.3 The security created by the cession shall be a continuing one notwithstanding any fluctuation in the amount of indebtedness of the
Customer to the Seller.
19.4 The Customer hereby undertakes on demand to furnish the Seller with such information concerning its debtors as may be reasonably required, to enable the Seller to give effect to the provisions of this clause.
19.5 Should it transpire that the Customer entered into prior deeds of cession, then this cession shall operate as a cession of all the Customer’s reversionary rights.
20.1 These terms and conditions shall govern all future contractual relationships between the Seller and the Customer and shall also be applicable to all debts which the Customer may owe to the Seller prior to the Customer's signature hereto.
20.2 No amendment and/or alteration and/or variation and/or deletion and/or addition and/or cancellation of these terms and conditions, whether consensual or unilateral or bilateral shall be of any force and effect unless reduced to writing and signed by a director of the Seller.
20.3 No warranties, representations or guarantees have been made by the Seller or on its behalf which may have induced the Customer to sign this document.
20.4 No relaxation or indulgence that the Seller may give at any time in regard to the carrying out of the Customer’s obligations in terms of any contract shall prejudice or be deemed to be a waiver of any of the Seller's rights in terms of these terms and conditions.
20.5 The Customer shall not cede his rights nor assign his obligations contained herein unless the Seller agrees in writing to such cession or assignment.
20.6 The Seller shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of this application for credit facilities including all terms and conditions to any third party without prior notice to the Customer.
20.7 The Customer undertakes to notify the Seller within a period of 7 (seven) calendar days of any change of address or any changes in the information as set out in this contract.
20.8 Each of the terms herein, shall be separate and divisible and if any provision of these terms and conditions, which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
20.9 The Customer undertakes to inform the Seller in writing at least 14 (fourteen) calendar days prior to the intended selling or alienating of the whole of or any part of the Customer’s business and a failure to do so will constitute a material breach of these terms and conditions entitling the Seller to cancel the contract, entered into between the Seller and the Customer pursuant to these terms and conditions, without further notice to the Customer.
20.10 The Seller has the right, from time to time, to amend the terms and conditions of sale.