Transactional Reseller Terms and Conditions

DEFINITIONS AND INTERPRETATION

  1. In these Terms and Conditions, unless the context clearly indicates a contrary intention, the following expressions and definitions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
    1. “Accepting” – means to accept these terms and conditions by clicking the applicable online link (i.e. check box) when subscribing as a transactional reseller;
    2. “Additional Services” – means implementation and configuration services, as well as training services in relation to the Products, rendered by the Company to End – Users, as may be required from time to time;
    3. “AFSA” – means the Arbitration Foundation of Southern Africa;
    4. “Business Day” – means any day other than a Saturday, Sunday or official public holiday in South Africa;
    5. “Company” means ITR Technology (Pty) Ltd (Registration Number: 2005/034144/07);
    6. “Confidential Information” – means any and all information and/or data of the Disclosing Party, including, but not limited to, information regarding any past, current, proposed and/or future: 

software, hardware, business plans/models, technical data, technical information, research, development information, products, product specifications, product secrets, product designs, production data and methods, know-how, trade secrets, designs, models, processes, formula, techniques, manuals, samples, devices, demonstrations, intellectual property (whether registered or unregistered and including the Intellectual Property), business and product development plans, prices, costs and costs of operations, and financial projections and/or financial information, financial statements, information relating to suppliers, sources, information relating to customers, investment opportunities and/or communications in which the Disclosing Party has an interest in being kept confidential,

any other information and/or materials of whatsoever nature, which the Disclosing Party has an interest in being kept confidential,

any and all information relating to existing, new and/or potential End – Users of the Company,

albeit contained in agreements, files, archives, systems, networks, databases or any other form of storage, and in whatever form or medium, whether in oral, tangible, written, visual or electronic form, and whether marked or identified as proprietary, sensitive, confidential and/or secret or not, which by its nature or content is identifiable as, or could reasonably be expected or regarded to be, confidential, secret and/or proprietary to of the Disclosing Party; 

  1. “Confidential Materials” – means any and/or all materials and/or documents which contain Confidential Information;
  2. “Data Subject/s” – means data subjects as recorded under and in terms of section 1 of the POPIA;
  3. “Disclosing Party” – means any Party disclosing Confidential Information and/or Confidential Materials to the Receiving Party pursuant to these terms and Conditions;
  4. “End – User” – means any entity/person which/who purchase, either directly or indirectly, the Products from the Company and deploys the Products in the operation of his/her/its own business;  
  5. “Force Majeure” – means any event beyond the control of either Party including Acts of God, war, riot, civil commotion, viruses, diseases, malicious damage, shortage of supply, factory standstills, strikes or other industrial action, compliance with any law or governmental order, any overriding emergency procedures, accident, fire, flood, storm and the acts and/or omissions of any persons or entities over whom either Party does not have direct control;  
  6. “Intellectual Property” – means all Zoho’s patents, registered and/or unregistered trademarks, service marks, copyright, designs, trade names, trade logos, trade dress, including applications for registration of any of the aforegoing, as well as any intellectual property relating to the Products;  
  7. “License/s” – means either a Subscription License, or a Perpetual License, as the case may be;
  8. “Maintenance and Support Services” – means the maintenance and support services in relation to the Products, to be rendered by the Company to the End – Users, as may be required from time to time, which includes Product upgrades, security updates and bug fixes;
  9. “Parties” – means the Company and the Reseller collectively, and “Party” shall mean either one of them as the context requires; 
  10. “Perpetual License” – means a permanent license in respect of the ManageEngine Software, which permanent software license excludes the Maintenance and Support Services; 
  11. “Person” means an identifiable, living, natural person, or an identifiable, existing juristic person;
  12. “Personal Information” means personal information as defined under and in terms of section 1 of the POPIA;
  13. “POPIA” means the Protection of Personal Information Act, 4 of 2013; and
  14. “Process or Processing” means processing as defined under and in terms of section 1 of the POPIA.
  15. “Products” – means the ManageEngine Software Licenses;
  16. “Receiving Party” – means any Party and/or its representatives receiving Confidential Information and/or Confidential Materials from the Disclosing Party pursuant to the terms and conditions of these Terms and Conditions;
  17. “Reseller” – means the reseller, approved and appointed by the Company, to resell the Products, to its End – Users, on an ad hoc basis, which reseller accepted, as provided for under and in terms of clause 1.1.1, these Terms and Conditions;
  18. “Services” – means collectively the Maintenance and Support Services and the Additional Services; 
  19. “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; 
  20. “Terms and Conditions” means these transactional reseller terms and conditions of sale
  21. “VAT” – means Value Added Tax in terms of the Value Added Tax Act, Act 89 of 1991; and
  22. “Zoho” – means Zoho Corporation Provide Limited of 105 Cecil Street, No 10 -04, The Octagon, Singapore, 069539.
  1. clause headings have been inserted for convenience only and shall not be taken into account in its interpretation;
  2. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive clause in the body of these Terms and Conditions, notwithstanding that it is only contained in the definition;
  3. Expressions defined in any clause shall, unless the application of any such expression is specifically limited to that clause or unless another clause specifically assigns another definition to such expression, bear the meaning assigned to such expression throughout these Terms and Conditions; 
  4. 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;
  5. 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;
  6. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;
  7. A reference to a person includes such person’s permitted successors, assignees, transferees or substitutes;
  8. An expression which denotes: 
    1. a gender includes the other genders; 
    2. a natural person includes a juristic person and vice versa; and
    3. the singular includes the plural and vice versa;
  9. the use of the word “including” followed by specific examples shall not be construed as limiting the meaning of the general wording preceding it and general words that follow specific words in a list, shall not be construed as referring only to the types of things identified by the specific words.
  10. The expiration or termination of these Terms and Conditions shall not affect such of the provisions of these Terms and Conditions as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
  11. The terms of these Terms and Conditions, having been negotiated, shall not be interpreted against the Party who procured its preparation and drafting, nor shall exclusion clauses contained in these Terms and Conditions be construed against the Party relying on same.
  12. These Terms and Conditions shall be governed by, construed and interpreted in accordance with the laws of South Africa.

RECORDAL

  1. The Company has been appointed as the sole and exclusive distributor of the Products within South Africa; and
  2. The Company has the exclusive right to distribute and license the Products within South Africa, including the right to appoint resellers to market, promote and sell the Products; and
  3. Whereas the Company is desirous of appointing the Reseller, as a non – exclusive Reseller to market, promote and sell the Products within South Africa; and
  4. Whereas the Reseller is desirous of being appointed as a non – exclusive Reseller to market, promote and sell the Products within South Africa.

NON – EXCLUSIVE GRANT

    1. The Company herewith grants to the Reseller a non – transferable, non – exclusive right to promote, market and sell/license the Products to End – Users within South Africa;
    2. The Company herewith grants to the Reseller a limited, revocable and non-exclusive license to use the Intellectual Property for the purpose of promoting, marketing and selling/licensing the Products to End – Users and/or potential End – Users within South Africa;
    3. The Reseller may not in any form or manner, or for any reason whatsoever, use or allow the use of the Intellectual Property, or any portion thereof, other than as provided for in these Terms and Conditions;
    4. Nothing in these Terms and Conditions shall be construed to prevent the Company from granting any other licenses or rights for use of the Intellectual Property (or any portion thereof). 

NATURE OF RELATIONSHIP

  1. The Reseller shall serve as an independent Reseller of the Products.
  2. The Parties shall at all times be and remain independent of each other, it being understood that the relationship constituted by these Terms and Conditions shall always be conducted, operated and maintained on an arm’s length basis.
  3. It is specifically agreed between the Parties that these Terms and Conditions shall not be construed as constituting/appointing either Party as an employee or agent of the other Party for any purpose or in any manner whatsoever, nor will it constitute or create a franchise, joint venture or partnership relationship/agreement between the Parties.
  4. It is specifically recorded that the Reseller will not incur, or attempt to incur, any liability on behalf of the Company. The aforesaid will include that the Reseller will not in any way pledge or purport to pledge the Company’s credit, or accept any order or make any contract binding upon the Company.
  5. Neither of the Parties shall under any circumstances whatsoever describe themselves:
    1. as an “employee”, “franchisee”, “partner”, “agent” or “joint venture partner” for and/or of the other Party; or
    2. in any words that would and/or could indicate or imply the existence of an “employer/employee”, “franchisor/franchisee”, “partnership”, “agency” and/or “joint venture” relationship between the Parties.

PRODUCT PRICING AND PAYMENT

Price

  1. Unless otherwise quoted and agreed in writing between the Parties, orders shall be priced in accordance with the Company’s then applicable price list. The Company reserves the right to revise its price list, at its sole discretion, from time to time. Any amendment to the Company’s price list shall be effective immediately except for instances where the Reseller is able to prove, to the Company, and to the Company’s satisfaction, that it quoted a prospective End-User based on the previous price list, in which case the quoted price list shall be valid for a period of 2 (two) days from date of quotation by the Reseller to the prospective End-User. 
  2. The Company will provide, as soon as possible, and in any event within 2 (two) Business Days from the date upon which an order is accepted, the Reseller with the applicable invoice.
  3. All prices quoted by the Company from time to time will be exclusive of VAT, unless specifically otherwise indicated by the Company via written and signed notice to the Reseller.
  4. The Company will raise VAT on prices quoted as and when legally relevant and/or required.

Payment

  1. Unless otherwise agreed upon between the Parties, the Company’s payment terms will strictly be on a “cash on demand” basis. For the avoidance of doubt, payment must be made by the Reseller, on presentation of the applicable invoice. It is specifically agreed that the Products will only be delivered upon receipt of payment of the total price as recorded in the applicable invoice. 
  2. Payment will be made:
    1. via electronic funds transfer or cash deposit only; and 
    2. in South African currency free of bank and other charges; and
    3. into such bank account as the Company may determine; and 
    4. free from any deduction, withholding and/or set-off, except for any tax that the Reseller is required by law to deduct or withhold.
  3. The Reseller shall not be entitled to withhold payment of any payments due or payable to the Company under these Terms and Conditions for any reason whatsoever.

PRODUCT ORDERS 

General

The Reseller shall place orders with the Company by forwarding a formal purchase order via e-mail, setting out the purchase order number, purchase order date and quantity required in respect of the Products.

  1. Upon receipt of a Purchase Order, the Company shall within 2 (two) Business Days confirm the order in writing by e-mail. The date of such confirmation shall be deemed to be the date of acceptance of the purchase order by the Company. 
  2. In the event that the Company fails to confirm receipt of the Purchase Order within the said 2 (two) Business Days, it will be deemed that the order is accepted and confirmed by the Company. For the avoidance of doubt, should the Company fail to confirm the order, it will be deemed that the order is confirmed at the lapse of the 2 (two) Business Day period.

Conflicts

  1. In the event of any conflict between instructions or terms and conditions contained in a purchase order and these Terms and Conditions, these Terms and Conditions will prevail and be applicable, but limited only to such an extent that they are conflicting.
  2. No purchase order will, in any way, add to, detract from or otherwise vary any of either Party’s duties, obligations or rights in terms of these Terms and Conditions. It is understood that purchase orders will not contain any detail in excess of that stipulated in clause 6.1.1 above.

PRODUCT DELIVERY

Delivery lead times

  1. Unless otherwise agreed to between the Parties in writing, the Company shall deliver the Products to the specified End – User, within 5 (five) Business Days from date of receipt of payment of the applicable invoice amount.

Date of delivery

  1. 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. 

Delivery

  1. Unless otherwise agreed to by the Company, delivery of the ordered Products will be made directly to the applicable End – User at the said End – User’s nominated email address.
  2. All risk, liability and responsibility in the Products ordered shall pass to the End – User on the date of delivery.
  3. As the End – User will obtain a License (i.e. right to use), the subscription and the benefit in relation to the License will transfer to the End – User at the date of delivery. For the avoidance of doubt ownership of the Products, including the Intellectual Property thereto, shall remain vested in Zoho. 

SERVICES

    1. Should the Company be engaged and required to render the Services:
      1. the Company will deliver a Quotation to the End -Users in respect of the Services to be rendered;
      2. upon acceptance of the Quotation by the End-User, deliver the corresponding Invoice to the End-Users;
      3. payment terms will strictly be on a “cash on demand” basis; and
      4. the Services will be rendered at an agreed upon time, date and place, and if agreed upon between the Company and End-Users, online training may be done if required.
    2. In the event of the End-User failing to attend to agreed upon training sessions, and unless otherwise agreed upon between the Company and End-User in writing, the Company will be under no obligation to refund the End-User for the training services rendered. The obligation fully rests on the End-users to ensure that the attendees attend the training, otherwise any payments made will be forfeited. 

MAINTENANCE AND SUPPORT SERVICES FOR PERPETUAL LICENSE HOLDERS

    1. It is specifically recorded that Maintenance and Support Services are compulsory for the first 12 (twelve) months, and as such, must be subscribed for from the date upon which a Perpetual License is purchased (the “Initial Period”).
    2. In addition to the provisions of clause 9.1, and for the sake of clarity, Maintenance and Support Services are not compulsory after the Initial period (i.e. at the expiration of the Initial Period). Subject to clause 8 above, the Reseller and/or End – User has the option to renew the Maintenance and Support Services annually.
    3. Should the Reseller and/or End – User renew the Maintenance and Support Services after the Initial Period, the Reseller and/or End – User will be liable for the applicable Maintenance and Support Services fee. The aforesaid fee is an annual fee, payable for the specific 12 (twelve) month period determined from the date when the Initial Period, or any renewal period, expires.
    4. It is specifically recorded that, notwithstanding the renewal date, the full annual Maintenance and Support Services fee will be payable by the Reseller and/or End – User for that specific 12 (twelve) month period, determined from the expiration of the Initial Period, or any renewal period, as the case may be. 

RESERVED RIGHTS OF THE COMPANY

    1. Notwithstanding anything to the contrary contained, the Company reserves the following rights:
    2. To promote sales in Territory 
      1. The Company reserves the right to take such steps as may be necessary or expedient (including, and without prejudice to the generality of the reserved right, to appoint other resellers or representatives in the Territory) to market, promote, sell or otherwise deal with the Products in the Territory.
    3. To trade within the Territory 
      1. The Company reserves the right to deal directly or indirectly with End-Users for the sale of the Products within the Territory.
    4. To alter schedule of products
      1. The Company reserves the right to vary or alter the Products either by withdrawing therefrom a class or classes of Products offered by it in the event of the Company ceasing to deal with that class or those classes of Products.  

WARRANTIES 

    1. The Company warrants to the Reseller that:
      1. it is the sole authorised distributor/licensor of the Products in the Territory, and that all other resellers of the Products in the Territory (if any) have been appointed by the Company in its capacity as distributor/licensor; and
      2. it has been directly authorised by Zoho to distribute the Products and to appoint independent resellers within the Territory.

INDEMNITIES

    1. The Reseller hereby indemnifies and undertakes to hold the Company completely harmless against any and all losses, liabilities, claims, damages, penalties, judgments, disbursements, costs and expenses (including legal costs) to which the Company may become subject, which directly or indirectly arises from or relates to:
      1. the enforcement of these Terms and Conditions;
      2. any breach by the Reseller of these Terms and Conditions and/or any representation, warranty, covenants or other terms and conditions or agreement contained in or contemplated by these Terms and Conditions;
      3. The Reseller 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.

LIMITATION OF LIABILITY

    1. Either Party 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 either Party or anyone else may suffer in any form or manner or for any reason whatsoever.
    2. It is specifically recorded that:
      1. the Company’s liability towards the Reseller will never exceed 25% (twenty five percent) of the applicable License fee paid (i.e. amount paid by the Reseller to the Company in respect of the applicable invoice); or 
      2. in the event that a claim relates to the Maintenance and Support Services and/or Additional Services, the total costs paid in respect of the applicable services rendered.

CONFIDENTIALITY 

    1. The Receiving Party hereby undertakes to keep confidential and not to publish, disclose or to otherwise reveal in any way whatsoever any of the Disclosing Party’s Confidential Information. 
    2. The Receiving Party hereby undertakes not to compete with (nor to make commercial use of), albeit directly or indirectly, any of the Disclosing Party’s Confidential Information.
    3. The Disclosing Party’s Confidential Information, in whatever form, shall not be copied, used or reproduced, save with the Disclosing Party’s express prior written permission. 
    4. The Receiving Party agrees to limit access to the Disclosing Party’s Confidential Information to such persons reasonably required to be aware thereof, and to bind such persons under provisions, not less restrictive than those contained herein.
    5. The Receiving Party undertakes not to use the Disclosing Party’s Confidential Information for any purpose other than specifically allowed/authorised by the Disclosing Party in writing, and, without derogating from the generality of this clause 14.5, will not seek to gain any commercial advantage from the Disclosing Party’s Confidential Information disclosed to it, unless the Disclosing Party’s first expressly agrees otherwise in writing. 
    6. The Receiving Party undertakes to at all times keep all of the Disclosing Party’s Confidential Information and, without limitation, all other material relating to the Disclosing Party’s Confidential Information, it receives, in a safe place. 
    7. The Receiving Party shall, upon demand return all Confidential Information received to the Disclosing Party within 7 (seven) days.
    8. The Receiving Party agrees that the disclosure or unauthorised use of the Disclosing Party’s Confidential Information would be harmful to the Disclosing Party, and hence the Disclosing Party shall be entitled to enforce the confidentiality, non-disclosure and/or non-use provisions of these Terms and Conditions by means of an interdict, specific performance or other equitable relief.
    9. The Receiving Party acknowledges that it will be liable to the Disclosing Party for any breach of this clause 21 by itself or any of its employees, representatives or agents and indemnifies the Disclosing Party against all and any direct and indirect loss and/or damage, liability or expense whatsoever (which shall include legal costs on an attorney and own client scale), which the Disclosing Party may directly or indirectly suffer or incur as a result of or which may be attributable to:
      1. any intentional or negligent disclosure of its Confidential Information to any unauthorised party whomsoever or whatsoever by the Receiving Party or any of its employees, representatives or agents; or
      2. any unauthorised use of its Confidential Information by the Receiving Party or any of its employees, representatives or agents, or by any unauthorised party who acquired the said Confidential Information through/from the Receiving Party and/or his/its employees, representatives or agents. 
    10. Reference to the Receiving Party in this clause 17 shall also refer to and include any of the Receiving Party’s employees, representatives, agents, legal persona/business entities of which it is a member, whether such membership is held directly or through another legal persona in an organizational structure directly or indirectly or in any way in which the Receiving Party has an interest. The restriction as set out in this clause will furthermore incorporate any family or non-family members through whom, in any structure or organization, the Receiving Party may have or may obtain an interest.
    11. The Disclosing Party shall retain ownership of all its Confidential Information as furnished in these terms and Conditions which shall be deemed to be lent only for the aforesaid purpose.

PRIVACY

    1. Each Party expressly warrants and undertakes to the other Party, that it will:
      1. process the Personal Information of the other party and/or applicable Data Subject/s strictly in accordance with the conditions of lawful processing, as provided for under and in terms of POPIA;
      2. in performing its obligations under these Terms and Conditions, comply with the provisions of POPIA and not cause the other Party to breach any of its obligations under POPIA;
      3. not use the Personal Information of the other party and/or applicable Data Subject/s, for any other purpose, save for the purpose set out under these Terms and Conditions;
      4. only disclose, transfer and/or hand over the Personal Information of the other party and/or applicable Data Subject/s to those persons/s identified in terms of these Terms and Conditions, and/or who have a legitimate or commercial interest in the Personal Information;
      5. treat the Personal Information of the other party and/or applicable Data Subject/s as confidential and not disclose the said Personal Information to any other person unless required by law, and only once it has provided the other Party with adequate warning of this requirement to disclose, the related details of the intended disclosure, the identity of the person who is to receive the Personal Information and the reason for the disclosure;
      6. continue to have in place, appropriate technical and organizational measures to protect and safeguard the Personal Information of the other party and/or applicable Data Subject/s against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which in addition, provides a level of security appropriate to the risk represented by the processing and the nature of the said Personal Information to be protected and which safeguards complies with the requirements set out under and in terms of the POPIA;
      7. notify the other Party immediately where it has reasonable grounds to believe that the Personal Information of the other party and/or applicable Data Subject/s , which has been provided to it, including any Personal Information which it has processed, has been lost, destroyed, or accessed or acquired by any unauthorised person;
      8. Each Party hereby indemnifies and hold the other Party harmless from any liability whatsoever arising from the other Party’s failure to comply with its statutory obligations contained in POPIA, including its obligations as recorded in this clause 15.

NON-CIRCUMVENT AND NON-SOLICITATION

    1. The Reseller undertakes that it will not (albeit directly or indirectly, or directly or indirectly through any of their subsidiaries, holding companies, group companies, related parties and/or inter-related parties) circumvent the Company with regard to any opportunity, business, contracts and/or commercial or other arrangements of the Company in any form or manner or for any reason whatsoever. This includes the Reseller will not (albeit directly or indirectly, or directly or indirectly through any of their subsidiaries, holding companies, group companies, related parties and/or inter-related parties) circumvent the Company in negotiating or concluding any transactions, actions, arrangements and/or agreements regarding any opportunity, business, contracts and/or commercial or other arrangements of the Company.
    2. The Reseller agrees and undertakes that it will not (albeit directly or indirectly, or directly or indirectly through any of their subsidiaries, holding companies, group companies, related parties and/or inter-related parties) solicit, interfere with, entice or endeavour to entice away from the Company, any of the Company’s employees, agents, distributors, shareholders, directors, suppliers, customer, clients, contracts, commercial arrangements and/or project managers.

INTELLECTUAL PROPERTY RIGHTS

    1. The Reseller acknowledges that any and all right, title and interest in and to the Intellectual Property vests (and shall remain vested) in Zoho and that it has no claim of any nature whatsoever in and/or to the Intellectual Property, other than as provided for under these terms and Conditions. 
    2. Zoho retains exclusive ownership of the Intellectual Property rights and related documentation. The Reseller shall not, during or at any time after the expiry or termination of these Terms and Conditions, commit, suffer or permit any act that infringes Zoho’s Intellectual Property rights;
    3. The Reseller shall not, or attempt to, reverse engineer, decompile, or disassemble the Products and/or Intellectual Property, in an attempt to duplicate the Products and/or  Intellectual Property or imitate any of its functions;
    4. the Reseller agrees to use all reasonable efforts to protect the Products and Intellectual Property and related documentation from unauthorised use, reproduction, distribution, or publication;
    5. the Reseller shall not remove or obscure any Intellectual Property notices from the Products;
    6. the Reseller shall not, take any action that would cause injury to Zoho’s intellectual property rights in respect of the Intellectual Property and/or Products;
    7. the Reseller shall, indemnify the Company against all liabilities, costs, losses, damages and expenses which the Company may incur or suffer as a result of the Reseller’s breach of Zoho’s intellectual property rights in the Intellectual Property, the Products and related documentation.
    8. It is recorded that clauses 17.2 to 17.7 will operate as a stipulatio alteri in favour of Zoho.
    9. Furthermore, the Reseller shall, prior to providing any End-User with the Products, ensure that all licenses sold or licensed to End-Users contain in these terms and conditions set forth in Zoho’s then current end-user agreement.
    10. The Reseller shall immediately bring any improper or wrongful use of Zoho’s Intellectual Property or other similar industrial or commercial rights, within the territory, which comes to the Reseller’s notice, to the attention of the Company. The Reseller shall use every effort to safeguard the property, rights and interests of the Company and Zoho and shall assist the Company at its request in taking all reasonable steps to defend the Company’s and Zoho’s rights.  It is recorded that this clause will operate as a stipulatio alteri in favour of Zoho.

FORCE MAJEURE 

    1. A Party affected by Force Majeure will not be deemed to be in breach of these Terms and Conditions, or otherwise be liable to the other Party, by reason of any delay in performance, or the non-performance, of any of its obligations under these Terms and Conditions to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other Party in accordance with clause 18.2 below. The time for performance of that obligation shall be extended accordingly, subject to clause 18.3. 
    2. If any Force Majeure occurs in relation to either Party which affects or is likely to affect the performance of any of its obligations under these Terms and Conditions, it will notify the other Party within a reasonable time as to the nature and extent of the circumstances in question and their effect on its ability to perform.  
    3. If the performance by either Party of any of its obligations under these Terms and Conditions is prevented of delayed by Force Majeure for a continuous period in excess of 3 (three) months, the Parties will negotiate in good faith, and use their best endeavours to agree upon such amendments to these Terms and Conditions or alternative arrangements as may be fair and reasonable and with a view to alleviating its effects, but if they do not agree upon such amendments or arrangements within a further period of 30 (thirty) days, the other Party will be entitled to terminate/cancel these Terms and Conditions by giving written notice to the other Party affected by the Force Majeure. 

CANCELLATION

    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 Reseller commits a breach of any of the provisions of these Terms and Conditions; or ii) if the Reseller being a partnership, the partnership is terminated; or iii) if the Reseller being a legal entity/juristic person, is placed under a provisional or final order of liquidation or business rescue; or iv) if the Reseller compromises or attempts to compromise generally with its creditors.
    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.
    3. Upon the termination of an order for any reason whatsoever: i) all amounts then owed by the Reseller to the Company under the order shall become due and payable immediately, and ii) the Company may retake possession of any Products sold.

ARBITRATION AND COSTS

    1. If any dispute or difference of any kind whatsoever shall arise between the Reseller 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. 
    2. The Reseller agrees that if any claim against the Reseller is handed over to the Company’s attorneys for collection, the Reseller 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. 

MISCELLANEOUS

    1. Severability
      1. It is agreed that each clause and each sub-clause in these Terms and Conditions is severable, the one from the other;
      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.
    2. Entire Terms and Conditions and non-variation
      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 Reseller. The Reseller warrants that it understands all the terms and conditions and accepts them. 
      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.
    3. Assignment of rights and obligations
      1. The Reseller 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.
      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 Reseller.
    4. Relaxation
      1. No relaxation which the Company may give at any time and on any occasion in regard to carrying out of the Reseller’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.
  • ACCEPTANCE
    1. The person Accepting these Terms and Conditions on behalf of the Reseller and as the Reseller’s representative: 
  1. i) guarantees that these Terms and Conditions will be enforceable against the Reseller; 
  2. ii) guarantees that the Reseller will comply with all of its obligations in terms of these Terms and Conditions;

iii) indemnifies the Company on behalf of the Reseller, and undertakes to hold The Company harmless against all damages, claims, costs, expenses and/or demands that the Company may suffer should the Reseller 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.

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