Terms and conditions
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions, unless the context clearly indicates a contrary intention, the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
1.1.1 “Accepting” – means to accept these terms and conditions by either, (i)confirming acceptance orally or in writing, (ii) accepting a Quotation and/or Invoice, or (iii) by placing an order – and/or paying for the Products and/or Services;
1.1.2 “Additional Services” – means implementation and configuration services, as well as training services in relation to the Products, rendered by the Company to the Customer, as may be required from time to time
1.1.3 “Business Day” means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
1.1.4 “Company” means ITR Technology (Pty) Ltd (Registration Number: 2005/034144/07);
1.1.5 “CPA” means the Consumer Protection Act, Act 68 of 2008, as amended from time to time;
1.1.6 “Customer” means the entity/person which/who purchase, either directly or indirectly, the Products and, if required, the Services from the Company from time to time;
1.1.7 “Products” – means the ManageEngine Software Licenses;
1.1.8 “Invoice” means the invoice rendered and delivered by the Company to the Customer, which invoice will be in line with the relevant Quotation, if applicable, and will among others stipulate the following: the date, the Customer’s details, banking details, amount due and payable, the Products and/or Services, if any;
1.1.9 “License/s” – means either a Subscription License, or a Perpetual License, as the case may be
1.1.10 “Maintenance and Support Services” – means the maintenance and support services in relation to the Products, to be rendered by the Company to the Customer, as may be required from time to time;
1.1.11 “NCA” means the National Credit Act, Act 34 of 2005, as amended from time to time;
1.1.12 “Parties” means the Customer and the Company collectively, and “Party” shall mean either one of them as the context may require;
1.1.13 “Perpetual License” – means a permanent license in respect of the ManageEngine Software, which permanent software license excludes the annual Maintenance and Support Services;
1.1.15 “Quotation” means the quotation furnished by the Company to the Customer, stipulating the costs and expenses in respect of the Products to be delivered and/or the Services to be rendered;
1.1.16 “Services” – means the Maintenance and Support Services and/or the Additional Services, as the case may be;
1.1.17 “Subscription License” – means a 12 (twelve) month software subscription in respect of the ManageEngine Software, renewable 10 (ten) days prior to the expiration of the 12 (twelve) month subscription period, which subscription license includes the Maintenance and Support Services;
1.1.18 “Terms and Conditions” means these general terms and conditions of sale; and
1.2 In these Terms and Conditions, the words “clause” or “clauses” refer to clauses of these Terms and Conditions.
1.3 If any period is referred to by way of reference to a number of days, the days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the first Business Day thereafter.
1.4 Where the day on or by which anything is to be done, is not a Business Day, it shall be done on or by the first Business Day thereafter.
1.5 An expression which denotes:
1.5.1 any gender includes the other genders;
1.5.2 a natural person includes a juristic person and vice versa; and
1.5.3 the singular includes the plural and vice versa.
1.6 The use of the word “including” followed by specific examples shall not be construed as limiting the meaning of the general wording preceding it.
1.7 These Terms and Conditions shall be governed by, construed and interpreted in accordance with the laws of the Republic of South Africa.
2.1 Unless specifically and explicitly otherwise agreed in writing by the Company, only these Terms and Conditions shall apply to an order for, and/or the sale and delivery of the Products and/or the rendering of Services by the Company to the Customer. This includes that these Terms and Conditions will override and supersede any and all terms and conditions of trade stipulated/advanced by the Customer from time to time, unless specifically and explicitly agreed otherwise by the Company in writing.
3. QUOTATIONS AND ORDERS
3.1 Unless specifically otherwise indicated on/via the Company’s quotation, the Company’s quotation is based upon ordered Products and/or Services;
3.2 Quotations delivered by the Company shall be valid for acceptance for a period of 3 (three) days only, unless specifically recorded otherwise in writing by the Company.
3.3 The acceptance of quotations and/or the placing of orders in respect of Products and/or Services by the Customer shall not be binding on the Company unless same has been acknowledged and confirmed by the Company in writing. Any and all orders shall be executed at the discretion of the Company and the mere receipt by the Company of an order shall not oblige the Company to supply the Products and/or render the Services.
3.4 The Company reserves the right to adjust prices quoted if the Customer fails to order and/or purchase the volume, nature, scope and/or extent of the Products and/or Services originally given as a basis for the quotation.
3.5 Each separate order for Products and/or Services shall, upon confirmation by the Company, constitute a separate contract between the Parties and accordingly any breach by the Company in relation to any one order will not entitle the Customer to terminate or vary any other order placed by it.
4.1 The price/s applicable to orders confirmed by the Company, will, subject to clause 3.2 and 3.3 above and 4.2 below, be based on accepted quotations, and will be indicated in the Company’s respective Quotations and subsequent Invoices.
4.2 If any of the Company’s costs/expenses in sourcing and delivering the Products and/or rendering the Services to the Customer have increased for any reason beyond the Company’s control, or in the ordinary course of the Company’s business, before delivery of the Products and/or rendering of the Services, then the price/s shall be increased by the excess or, if the excess cannot be determined exactly, by a reasonable allowance for it.
4.3 It is specifically agreed that all quoted prices are subject to fluctuations in the applicable rate of exchange.
5.1 Unless otherwise specifically agreed between the Parties in writing, all prices quoted by the Company from time to time will be deemed to be quoted exclusive of VAT.
6. DISCOUNTS AND REBATES
6.1 Prices charged will be strictly nett and not subject to any discount/rebate, unless otherwise agreed in writing by the Company.
6.2 In the event that the Company agrees to grant a settlement, volume, trade or other discount/rebate, such discount/rebate shall only be effectively and formally granted where the Company receives full payment by due date. If the Company does not receive full payment by due date, the settlement or trade discount/rebate shall be regarded as null and void and the Customer shall be liable for payment of the full amount charged.
7.1.1 All amounts owing by the Customer to the Company from time to time shall be paid by the Customer to the Company: i) on or before the due date for payment thereof; ii) via electronic funds transfer into such a bank account as the Company may nominate from time to time; iii) in South African currency free of bank and other charges; and iv) free from any and all deduction, withholding, set-off and/or counterclaim of any nature whatsoever.
7.1.2 Unless otherwise directed by the Company, the Customer will be required to use the applicable Invoice number for payment reference purposes.
7.1.3 Should any payment not be received by the Company from the Customer by the due date for payment thereof, the Company shall have the option, without prejudice to any of its other rights (albeit in terms of these Terms and Conditions or otherwise), to: i) cancel or suspend further supply of the Products and/or rendering of the Services; ii) by giving written notice thereof to the Customer, to require immediate payment of all amounts owing by the Customer to the Company, whether or not those amounts are actually due; and/or iii) to take any other action it may deem necessary, in accordance with these Terms and Conditions or otherwise at law, until such payment is received.
7.1.4 Any payment to be made by the Customer to the Company shall only be deemed to have been received by the Company once formal proof of payment has been delivered to the Company and the relevant amount reflects in the Company’s nominated bank account. The sufficiency, and subsequent acceptance, of the “formal proof of payment” referred to in this clause 7.1.4 aforementioned, shall be within the sole and absolute discretion of the Company.
7.1.5 All payments received by the Company from the Customer from time to time shall be appropriated firstly towards levied interest and thereafter to capital.
7.1.6 Unless otherwise recorded and agreed by the Company in writing, the Customer shall not withhold or delay payment to the Company for any reason whatsoever and/or at any time whatsoever.
7.2 Cash Payment Terms
7.2.1 The Company’s payment terms will strictly be on a “cash on demand” basis, in terms of which the Products will only be delivered upon receipt of payment of the total price in terms of the applicable Invoice.
8.1 Should payment not be received on or before the due date for payment thereof, the outstanding amount will accrue interest at a rate equal to the current prime lending rate plus 2 (two) percent, from the due date for payment until the date of actual payment thereof, both days inclusive.
9.1 A certificate under the hand of any member, shareholder, director and/or manager of the Company (whose appointment need not be proved) as to the existence and the amount of the Customer’s indebtedness to the Company at any time, as to the fact that such amount is due and payable, the amount of interest accrued thereon and as to any other fact, matter or thing relating to the Customer’s indebtedness to the Company, shall be prima facie proof of the contents and the correctness thereof for the purposes of provisional sentence, summary judgment or any other proceedings of whatsoever nature against the Customer in any competent court and shall be valid as a liquid document for such purpose.
10. PRODUCT DELIVERY
10.1 Unless otherwise agreed by the Company in writing, delivery of ordered Products will occur via email to the Customer’s nominated email address within 5 (five) Business Days from the date of receipt of payment of the applicable Invoice amount, as provided for in clause 7.1.4 above.
10.2 Although delivery schedules/delivery dates and/or estimated lead times may be determined and agreed between the Parties, time shall not be the essence of any order and any and all delivery dates which may be advanced must be (and will be) treated as approximate/estimated only, based on the latest information available to the Company. Under no circumstances shall the Customer be entitled to withdraw from and/or terminate any order, or refuse payment, on account of any delay in delivery or have any claim of any nature whatsoever against the Company arising from late delivery.
10.3 All risk, liability and responsibility in the Products ordered shall pass to the Customer on the date of delivery.
10.4 Notwithstanding any other provision to the contrary in any documents exchanged or delivered between or to the Parties, the Company’s obligation to deliver the Products ordered shall in all instances be subject to the following conditions precedent: i) the availability of Products ordered; and ii) timeous receipt by the Company of any and all specifications and information that may be required by the Company from the Customer.
10.5 As the Customer will obtain a License (i.e. right to use), the subscription and the benefit in relation to the License will transfer to the Customer at the date of delivery.
11.1 Should the Company be engaged and required to render the Services:
11.1.1 the Company will deliver a Quotation to the Customer in respect of the Services to be rendered;
11.1.2 upon acceptance of the Quotation by the Customer, deliver the corresponding Invoice to the Customer;
11.1.3 payment terms will strictly be on a “cash on demand” basis, in terms of which the Services will only be rendered upon receipt of payment of the total price in terms of the applicable Invoice – refer clause 7.1.4; and
11.1.4 the Services will be rendered at an agreed upon time, date and place, and if agreed upon between the parties, online training may be done if required.
11.2 In the event of the Customer failing to attend to the Services, and unless otherwise agreed upon between the Parties in writing, ITR will be under no obligation to refund the Customer for the Services not rendered. The obligation fully rests on the Customer to ensure that the attendees attend the training, otherwise any payments mad will be forfeited.
12.1 It is noted and agreed that it shall at all times be the sole and absolute responsibility and liability of the Customer to ensure that correct and accurate specifications and descriptions are delivered to the Company with regard to each order. Any document (including order forms, quotations, e-mails, faxes, etc.) delivered or transmitted to the Company by the Customer, albeit a signed document or not, referencing the type, quantity, description and/or specifications of Products and/or Services ordered, shall serve as: i) absolute proof of the Customer’s agreement with and acceptance of the entire content referenced in such document; and ii) absolute confirmation and agreement by the Customer that the correct Products and/or Services have been ordered by it.
12.2 It is noted and agreed that it shall at all times be the sole and absolute responsibility and liability of the Customer to ensure that correct and accurate Products and/or Services (as relates to description, type, quantity, specifications, etc.) are delivered to it by the Company.
12.3 The Customer wholly indemnifies and undertakes to hold the Company completely harmless with regard to any and all claims, damages, losses, costs, expenses and/or demands the Company may suffer or incur as a result of the Company ordering and/or delivering incorrect Products and/or defective Services based on the communications and/or confirmations made and/or delivered by the Customer.
12.4 If Products and/or Services or any part thereof are to be supplied or delivered in accordance with any special specifications, instructions or information furnished by the Customer, the Customer shall not have any claim of any nature whatsoever against the Company and the Company shall in no form or manner be liable for any loss, damage, claim, demand and/or cost suffered or incurred by the Customer or anyone else (albeit as a result of death, injury or otherwise) as a result of any error, discrepancy or defect in, or brought about by, those specifications, instructions and/or information.
13.1 The Customer acknowledges that it, or its representative in taking delivery of the Products, will at all times have a reasonable opportunity to inspect and test the Products before delivery is taken by the Customer.
13.2 Upon the Customer taking delivery of the Products as provided for under and in terms of clause 13.1, it shall be deemed that the Customer is completely aware of and satisfied with the entire nature and extent of the Products. Subsequently the Customer will have no right or title to reject any of the said Products to the Company.
13.3 The Company shall only accept a return/rejection of Products and/or a rejection of rendered Services in circumstances where it is obliged by law to do so, or where it specifically in writing agrees to do so.
13.4 In events where the Company’s acceptance of a return or rejection is prescribed and necessitated by law: i) it shall either repair the Products returned and/or redo the Services rejected, or replace the Products returned or refund the Customer the amount/s paid for the Products and/or Services, as the law may prescribe, and the costs and risk regarding such a return shall be carried by the Party prescribed to carry such risk and cost in the relevant law.
14.1 Subject to the provisions of the Regulation of Interception of Communications Act, Act 70 of 2002, the Customer agrees that the Company has right to intercept, block, filter, read, delete, disclose and use all communications sent or posted by the Customer on the Company’s website.
15.1 The Company does not deliver or provide any guarantees/warranties of any nature whatsoever with regard to any Products and/or Services, except for those that are prescribed by law or which are expressly provided in writing by the Company.
16. LIMITATION OF LIABILITY
16.1 The Company shall be exempted from and shall not be liable under any circumstances whatsoever for any indirect or consequential damages of any nature whatsoever or any loss of profit or special damages of any nature whatsoever, whether in the contemplation of the Parties or not, which the Customer or anyone else may suffer or
incur as a result of any act and/or neglect of the Company, or anyone else, of any nature, scope and/or extent whatsoever and irrespective the cause thereof and/or reason therefore.
16.2 The Company shall be exempted from and shall not be liable under any circumstances whatsoever for any damages of any nature whatsoever (albeit direct damages), whether in the contemplation of the Parties or not, which the Customer or anyone else may suffer as a result of any act and/or neglect of the Company or anyone else of any nature, scope and/or extent whatsoever, unless same was caused by the wilfully malicious and/or grossly negligent acts and/or neglects of the Company.
16.3 The Customer acknowledges that it shall ensure that it is fully acquainted with the condition of all purchased Products, as well as the Services rendered at all times, albeit via third party representatives or otherwise.
16.4 It is specifically recorded that the Company’s liability towards the Customer will never exceed:
16.4.1 25% (twenty five percent) of the applicable License fee paid (i.e. amount paid by the Customer to the Company in respect of the applicable Invoice); or
16.4.2 the total costs paid in respect of the applicable services rendered in the event that a claim relates to the Maintenance and Support Services and/or Additional Services.
17. NON PERFORMANCE
17.1 The Customer shall not have any claims of any nature whatsoever against the Company for any failure by the Company to carry out any of its obligations under an order or these Terms and Conditions as a result of vis major, force majeure, act of God, strike or lockout, shortage of labor or materials, breakdown of machinery, delays in transport, accidents of any kind and default or delay by any sub-contractor or supplier of the Company, riot, political or civil disturbances, the elements, any act of any state or government or any authority and/or any other cause whatsoever beyond the Company’s control.
17.2 The Company shall not be required to settle strikes, differences with workmen or government claims by acceding to any demands when in the discretion of the Company it would be inadvisable to accede to such demand. Notwithstanding the provisions of this clause 17, the Customer shall not be relieved of any obligation to make payment in the normal course as stipulated for Products delivered to it.
17.3 If, for any cause referred to in clause 17.1, the Company’s available supplies of Products become, or in its opinion will become, unable to meet the requirements of all customers at any time, then the Company shall be entitled to allocate those supplies among its customers (including the Customer and the Customer’s associated and affiliated companies) in such manner it deems fair and equitable in its sole and absolute discretion, and to vary its obligations to the Customer accordingly.
17.4 In the event that the Company is unable to comply with an order, for any reason which the Company did not actually foresee/anticipate, the Company shall be entitled to cancel the order by notice in writing. The Customer shall have no claims regarding such cancelled order and the Company shall not be liable, in any form or manner, for any claims, losses, damages and/or any other negative inferences suffered by anyone as a result thereof.
18. SUSPENSION OF THE COMPANY’S OBLIGATIONS
18.1 If any amount owed by the Customer to the Company, from any cause whatsoever, whether under an order or not, is not paid by the due date for payment then at the Company’s election (and without prejudice to any other rights the Company may have): i) all amounts then owed by the Customer to the Company from any cause whatsoever, shall immediately become due and payable; and/or ii) the Company may retain in its possession any Products of the Customer until all outstanding amounts have been paid; and/or iii) until payment is made the Company may suspend the rendering of the Services then uncompleted from any cause whatsoever and whether under any order or not; and/or iv) the Company may retain any payment made by the Customer to the Company prior to the due date of the payment in question.
19.1 The Company may cancel any order or any uncompleted Service for any reason whatsoever, including the following but not restricted thereto: i) if the Customer commits a breach of any of the provisions of these Terms and Conditions; or ii) if the Customer being a partnership, the partnership is terminated; or iii) if the Customer being a legal entity/juristic person, is placed under a provisional or final order of liquidation or business rescue; or iv) if the Customer compromises or attempts to compromise generally with its creditors.
19.2 The Company’s rights in terms of clause 19.1 shall not be exhaustive and shall be in addition to its other rights under these Terms and Conditions or otherwise.
19.3 Upon the termination of an order for any reason whatsoever: i) all amounts then owed by the Customer to the Company under the order shall become due and payable immediately, and ii) the Company may retake possession of any Products sold.
20. ARBITRATION AND COSTS
20.1 If any dispute or difference of any kind whatsoever shall arise between the Customer and the Company in connection with or arising out of an order or these Terms and Conditions, then the matter in dispute or difference shall be referred to arbitration in accordance with the provisions of AFSA (Arbitration Foundation of Southern Africa). The Arbitration shall be held in Pretoria, Republic of South Africa, in English before a single arbitrator and with a view of obtaining an expeditious result.
20.2 The Customer agrees that if any claim against the Customer is handed over to the Company’s attorneys for collection, the Customer shall be responsible for all attorney’s costs incurred by the Company, which costs shall include all collection costs, disbursements and costs on the scale between attorney and own client, inclusive of collection commission.
21. CPA AND NCA APPLICATION
21.1 It is noted that both the NCA and the CPA (amongst other laws) may find application to an order/transaction between the Customer and the Company from time to time. As such, it is confirmed that nothing contained in these Terms and Conditions and/or the Credit Application aims/intends to circumvent the NCA or the CPA in events where it may find application.
21.2 Notwithstanding that stated in 21.1 above, the NCA and CPA shall only apply to an order/transaction between the Parties where it is specifically provided, via the said Acts, that same applies and then only to the extent that same applies. In no way manner or form is intended that either of these Acts (albeit it in whole or partially) apply voluntarily.
21.3 Hence, for as far as the provisions of these Terms and Conditions and/or the Credit Application contradicts any provision of the CPA or NCA (or any other law) that apply to an order/transaction between the Company and the Customer, the applicable provision/s of the said law shall prevail in respect of that order/transaction (but only to the extent of the conflict).
22.1.1 It is agreed that each clause and each sub-clause in these Terms and Conditions is severable, the one from the other;
22.1.2 If any clause or sub-clause is found to be defective or unenforceable for any reason by any competent court, the remaining clauses shall continue to be of full and competent force and effect.
22.2 Entire Terms and Conditions and non-variation
22.2.1 These Terms and Conditions represent all the terms and conditions pertaining to the sale and delivery of Products and the rendering of the Services between the Company and the Customer. The Customer warrants that it understands all the terms and conditions and accepts them.
22.2.2 No alteration or variation of these Terms and Conditions shall apply unless the alteration or variation in question is expressly agreed to or issued in writing by the Company.
22.3 Assignment of rights and obligations
22.3.1 The Customer may not cede or assign its rights or obligations in terms of any order or these Terms and Conditions to any third party without the prior written consent of the Company, which consent shall not be unreasonably withheld.
22.3.2 The Company may cede and assign its rights and obligations in terms of any order or these Terms and Conditions applicable between the Parties (if any)) to any third party without the prior written consent of the Customer.
No relaxation which the Company may give at any time and on any occasion in regard to carrying out of the Customer’s obligations in terms of any order or these Terms and Conditions, shall prejudice or be a waiver of any of the Company’s rights to enforce those obligations on any subsequent occasion.
23.1 The person Accepting these Terms and Conditions on behalf of the Customer and as the Customer’s representative:
i) guarantees that these Terms and Conditions will be enforceable against the Customer;
ii) guarantees that the Customer will comply with all of its obligations in terms of these Terms and Conditions;
iii) indemnifies the Company on behalf of the Customer, and undertakes to hold The Company harmless against all damages, claims, costs, expenses and/or demands that the Company may suffer should the Customer fail to comply with all its obligations in terms of these Terms and Conditions or breaches any of its obligations in terms of or arising from these Terms and Conditions; and
iv) waives, and renounces the benefits, the defences and exceptions of benificia ordines seu excussionis, cedendarem actionem, beneficium divisionis, non causa debiti, de duobus vel pluribus reis debendi and no value received, the full force, meaning and effect whereof he/she declares and warrants himself/herself to be fully and completely acquainted.