The Supplier agrees that (a) this Agreement represents the entire Agreement between the Supplier and Sizwe Africa IT Group (Pty) Ltd (hereinafter called Sizwe) and that no alterations or additions to this Agreement may be effected unless agreed to by both parties, reduced to writing and signed by the Supplier and a duly authorised representative of Sizwe; (b) that this Agreement will govern all future contractual relationships between the parties; (c) is applicable to all existing debts between the parties; (d) this Agreement is final and binding and is not subject to any suspensive or resolutive terms and conditions; (e) any conflicting conditions stipulated by the Supplier are expressly excluded; (f) these terms supersede all previous conditions without prejudice to any securities or guarantees held by Sizwe and (g) these terms apply to all agents and subcontractors of Sizwe.
The standard terms of agreement of the Supplier is hereby expressly excluded and no notice or receipt of any documentation containing such terms will make them applicable unless Sizwe specifically agrees to such terms in writing and signed by a competent officer of Sizwe.
This Agreement becomes final and binding on receipt of the acceptance by Sizwe at its business address in Samrand.
The Supplier hereby acknowledges that he / she has read and understood each term of this Agreement and accepts these as binding and acknowledges that the content reflects the true meaning of both parties and that this Agreement has been entered into for the benefit of the Supplier.
The Supplier warrants that the signatory on the reverse side has been duly authorised to contract on the Supplier's behalf.
All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished to Sizwe in respect of the goods or services orally or in writing represent material pre-contractual representations by the Supplier about the goods or services on which Sizwe relied in concluding the contract.
The Supplier agrees that it will be liable for any negligent misrepresentations made to the Sizwe or any of its employees.
All quotes will remain valid for a period of 7 days or as negotiated for specific business, from the date of the quote and may not be cancelled by the Supplier within that period.
Any price quoted will remain fixed for a period of 7 days.
Goods quoted for are deemed packed in a condition to be shipped and adequately protected against reasonably foreseeable damage.
Goods quoted for are deemed to include the cost of delivery, insurance, off-loading, installation and related services.
Any changes to an order by Sizwe must be confirmed in writing by the Supplier before the delivery is effected.
Any omissions made when quoting Sizwe for a solution which results in the solutions not being workable, will be for the suppliers cost to rectify.
No order shall be valid or binding unless it is in writing and signed by a competent officer of Sizwe and an Order Number has been issued by Sizwe.
Delivery and Performance
The Supplier must effect delivery of the goods, off-load them and install them at the place and position designated by Sizwe or at its place of business if no place was designated.
The quantity of goods shipped, delivery and installation of goods and any other performance or service must comply strictly with the order.
The quality of the goods must comply strictly with the standard or grade stipulated in the agreement or examples or samples shown to Sizwe or standard or grade usually applicable in that trade, whichever is the higher.
Sizwe is not obliged to accept delivery except within the hours of 08:00 to 16:00 on days on which Sizwe is open for business.
The Supplier shall not be entitled to split the delivery / performance of the goods and services ordered without the written and signed permission of Sizwe.
Goods are not deemed delivered or accepted unless a delivery note has been signed by a competent representative of Sizwe or Sizwe’s client.
All orders accepted by the Supplier must be delivered either on or before the date designated by Sizwe or, where no date has been set, within seven days of the acceptance of the order.
Incorrect or deficient delivery shall be deemed no delivery at all, except if such deficient delivery is condoned in writing and signed by a competent officer of Sizwe.
Delivery without the complete and correct delivery documentation shall be deemed no delivery at all, unless condoned in writing and signed by a competent officer of Sizwe. The following constitutes the complete delivery documentation: (i) the tax invoice;(ii) the delivery note;(iii) a copy of the original order and subsequent amendments;(iv) the order number issued by Sizwe.(v) any other signoff documentation as stipulated by Sizwe and Sizwe’s clients.
Repair times and repair costs given must be strictly complied with.
Physical acceptance of the goods at the time of delivery shall not constitute complete acceptance of the goods until the goods and documentation have been checked in terms of section 10.2 by a competent officer of Sizwe.
Risk and ownership
Ownership of the goods shall pass to Sizwe on delivery of the goods.
The risk of damage to, destruction or theft of goods shall remain with the Supplier until the goods have been delivered and checked by a competent officer of Sizwe.
Goods will be deemed checked seven days after the date of delivery.
If the officer of the Sizwe in 10.2 checking the goods finds that the goods or their installation does not comply with the order, it shall give written notice to that effect to the Supplier within seven days of the date of delivery.
In cases where notice has been given of incomplete delivery or installation, the risk of damage to, destruction or theft of goods shall remain with the Supplier until the goods have been delivered fully or installed satisfactorily.
The risk of all goods taken on a demonstration basis by Sizwe remains with the Supplier and any goods not bought by Sizwe must be removed by the Supplier at its own cost. Goods not removed by the Supplier within seven days of having been notified by Sizwe will be stored at the cost of the Supplier.
The Supplier warrants that the goods and services are suitable for the purpose for which they are normally used and for any special purposes made known to it by Sizwe.
The Supplier hereby guarantees that the goods supplied and their usage by Sizwe does not or will not infringe the copyright, patent or any other intellectual property rights of any third party and hereby indemnifies Sizwe against any such claim that may arise against it.
New goods are guaranteed according to the Manufacturer's product specific warranties and the Supplier’s warranties, which warranties are in addition to any common law rights or warranties that Sizwe may have. The Manufacturer’s and Suppliers’ warranties will in no way exclude or restrict the applicable common law rights and warranties.
Goods are guaranteed against any defects for a period of one year and services against any defects for a period of one year.
Liability and penalties
Liability under Clause 11.1 - 11.4 may consist of (i) the cost of repair or replacement of faulty goods and services or granting of a credit at the sole discretion of Sizwe as well as (ii) a claim for any additional damages suffered by Sizwe and (iii) the penalties provided for in 12.4.
The Supplier shall be liable for all damages resulting from breach of contract which was foreseeable at the time the breach of contract was committed.
The Supplier shall retrieve any defective goods from the premises of Sizwe at the Supplier's own cost and the repaired or replacement goods shall be delivered to those premises within seven days unless any other period has been agreed to in writing and signed by Sizwe.
Sizwe shall be entitled to penalties for late delivery calculated at 5% of the contract price of the goods for every day late, subject to a maximum amount of 100% of the contract price.
The Supplier indemnifies Sizwe against any claims that a transport contractor transporting goods to Sizwe may have against Sizwe.
The Supplier agrees to pay all costs resulting from any acts or omission of the Supplier including suspension of work, modification of requirements by it, failure or delay in giving particular requisites to enable work to proceed on schedule or requirements that work be completed earlier than agreed.
The Supplier agrees that interest shall be payable on any moneys due to Sizwe at double the repo rate as declared by the Reserve Bank from time to time, from the date it falls due.
Any item delivered to Sizwe shall serve as a pledge in favour of Sizwe for present and past debts and Sizwe shall be entitled to retain or realise such pledges as it deems expedient at the value as determined by any sworn valuator and such valuation shall be conclusive proof of the value.
The sworn or realised value of pledged goods will be offset against the Supplier’s debts and any remaining balance will be paid to the Supplier.
Exclusion of liability
Under no circumstances shall Sizwe be liable for any consequential damages including loss of profits or for any delictual liability of any nature whatsoever.
Sizwe or any of its employees shall not be liable to the Supplier for any negligent or innocent misrepresentation.
Sizwe agrees to pay the amount on the Tax Invoice within 30 days from the end of the month in which a Tax Invoice has been issued to Sizwe, or on the dates stipulated in the payment schedule whichever is the longer period.
The Supplier shall not be entitled to payment unless:(i) the order is complete and no dispute regarding the order is unresolved;(ii) the delivery and installation of the goods or performance of services conforms in all respects to the quantity, quality, and installation ordered at the prices, discounts and terms ordered;(iii) the goods have been inspected and found free of defects;(iv) the complete documentation relating to the sale have been presented to Sizwe;(v) all supporting items and services have been delivered, including but not restricted to manuals, documentation, permits, packaging, set-up, training and other services contracted for.(vi) full delivery has been effected by the Supplier.(vii) all sales and delivery documentation specified in 8.9 is in possession of Sizwe Accounts Payable.
In the event that deficient or short delivery is accepted by Sizwe and such deficient delivery condoned in writing and signed by a competent officer of Sizwe, the Supplier shall be entitled to pro rata payment of the contract price. This right to payment does not restrict any other rights which Sizwe may have against the Supplier or the right to claim damages or penalties in terms of section 12.
The Supplier is not entitled to set off any amount due to the Supplier by Sizwe against a debt owing to Sizwe.
Breach of contract and damages
The Supplier agrees that if full delivery has not been effected on the date agreed upon; Sizwe is: (i) entitled to immediately institute action against the Supplier at the sole expense of the Supplier; or (ii) to cancel the agreement and reclaim any moneys paid to the Supplier and claim damages and penalties. These remedies are without prejudice to any other right Sizwe may be entitled to in terms of this agreement or in law.
In the event of a default by Sizwe, the Supplier shall not be entitled to institute any legal action against Sizwe without having given written notice of such default to Sizwe setting out the extent of the default and any actions the Supplier will take and giving Sizwe 30 days from the date of the notice to rectify the default.
Any order is subject to cancellation if the Supplier breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Supplier or any of its principals.
Repossession of goods
The Supplier may not repossess goods in the possession of Sizwe without a valid court order or the express written and signed authority of a competent officer of Sizwe. Repossession without these requisites shall be deemed trespass of Sizwe’s property.
In the event of goods having been validly repossessed, the Supplier shall not sell, or cause to be sold, the goods without 30 days elapsing from the date of repossession, within which time Sizwe shall be entitled to rectify any default. Upon having received full payment of all amounts due, the Supplier shall release the goods to Sizwe.
The risk of any repossessed goods shall be with the Supplier for the duration of the possession of the goods.
The Supplier shall be liable to Sizwe for all legal expenses on the attorney-and-own client scale of an attorney and counsel incurred by Sizwe in the event of (a) any default or breach of contract by the Supplier or (b) any litigation in regard to the validity and enforceability of this agreement. The Supplier shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Sizwe may demand.
The Supplier agrees that Sizwe will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate's Courts or in terms of Rule 47 of the Supreme Court Act 59 of 1959.
Sizwe shall have the right to institute any action in either the Magistrate's Court or the North Gauteng High Court at its sole discretion. These South African courts shall have exclusive jurisdiction in any litigation between the parties arising from whatsoever source.
In the calculation of any periods of time the first date is excluded and the last date included.
Any printout of computer evidence tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence or that the requirements of the Electronic Communications and Transactions Act 25 of 2002 have not been met.
The Supplier agrees that no indulgence whatsoever by Sizwe will affect the terms of this agreement or any of the rights of Sizwe and such indulgence shall not constitute a waiver by Sizwe in respect of any of its rights herein. Under no circumstances will Sizwe be estopped from exercising any of its rights in terms of this Agreement.
Any document shall be deemed duly presented to the Supplier within (i) 3 days of prepaid registered mail to any of the Supplier's business or postal addresses or to the personal address of any director, member or owner of the Supplier; or (ii) within 24 hours of being faxed to any of the Supplier's fax numbers or any director, member's or owner's fax numbers; or (iii) on being delivered by hand to the Supplier or any director, member or owner of the Supplier; or (iv) within 48 hours if sent by overnight courier; or (v) within 7 days of being sent by surface mail; or (vi) within 24 hours of being e-mailed to any e-mail address provided by the Supplier.
The Supplier chooses domicilium citandi et executandi at the business address or the physical addresses of any Director (in the case of a company), Member (in the case of close corporations) or of the Owner(s) or Partner(s).
The Supplier undertakes to inform Sizwe in writing within 7 days of any change of Director, Member, Shareholder, Owner or Partner or address or 14 days prior to selling or alienating the Supplier business and failure to do so will constitute a material breach of this Agreement.
The invalidity of any part of this Agreement shall not affect the validity of any other part.
Any order is subject to cancellation by Sizwe due to Acts of God from any cause beyond the control of Sizwe, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
This Agreement and its interpretation are subject to South African law.