Terms and Conditions

GENERAL TERMS & CONDITIONS (DELIVERY AND SALES CONDITIONS)

All the Supplier’s contracts regarding deliveries and services as well as any dependent or independent warranties or the like undertaken by theSupplier with respect to such deliveries or services in such contracts or in conjunction with such contracts are exclusively and solely based on the general terms and conditions for delivery and sales specified below, even though the Supplier may not refer particularly to them in a given case.

The applicability of these general terms and conditions for delivery and sale can only be excluded or changed in whole or in part by explicit written agreement (which terms shall not be interpreted to include a data message as defined in the Electronic Communications and Transactions Act 25 of 2002).

Customer’s standard-form contract conditions, especially buying conditions, do not apply to the Supplier’s deliveries and services or warranties, guarantees or the like. They are not binding on the Supplier even if the Supplier does not explicitly contradict them in a given case; the Supplier hereby contradicts their application. The written acceptance of this document (including by the signing of the agreement to which it is annexed)shall be deemed as the acceptance of these general terms and conditions for delivery and sales as set forth below.

Notwithstanding anything to the contrary contained elsewhere, the following procedure shall apply:

The Customer shall place an inquiry for the Supplier’s products or services, in writing;

The Supplier will provide the Customer with a quote on such required products or services, such quote to include the following information:

price;
place of delivery;
estimated date of delivery;
the period of validity of the quote; and
such other terms as the Supplier may prescribe, including credit terms (i.e., the period within which payment is to be made tothe Supplier) if applicable, provided that if any of such additional terms are in conflict with the terms hereof, the terms and condition set out herein shall prevail;

The Customer shall within the aforesaid period of validity consider the quote, and provided same is acceptable, the Customer willprovide the Supplier with a written purchase order, upon receipt of which a written contract of purchase and sale shall arise.

Availability, Product and Service Description

The provision of a quote in accordance with procedure outlined above is subject to the availability of the products. The Supplier reserves theright to make changes or revisions to the Supplier’s products and/or services. The Supplier’s catalogues and all statements or specifications published on the Supplier’s website (accessible at www.reslam.com) are under continuous revision. All illustrations and drawings included therein are not binding without written authorisation from the Supplier to the contrary, nor shall they be taken as a specification of quality nor as a warranty, guarantee or the like.

Payment

Unless agreed otherwise, the Customer shall effect payment to the Supplier on the date of delivery of the products or services, as the case may be, free of exchange, without deduction or set off and by way of electronic funds transfer into the Supplier’s nominated banking account, the particulars of which will be reflected on the relevant quote.
Any amount not paid on the due date shall, without notice to the Customer, bear interest at a rate not exceeding 2% (two percent) per month, calculated from the day following the due date to the date of actual payment, both days inclusive.

Product Guarantee

Unless otherwise agreed by the Supplier in writing, the Supplier’s product guarantee is 6 (six) months in respect of software and 24 (twenty-four) months in respect of hardware, equipment, and spare parts from date of installation by the Supplier thereof.

Delivery and Shipping

The estimated delivery period will not begin to run until such time that all details of the delivery have been clarified. The Customer is responsible for ensuring that the information provided during the order process is accurate and complete. The Supplier shall not be held liable for any losses or damages resulting from incorrect information provided by the Customer.

The delivery period specified in an order shall be void if and to the extent to which the order is modified by written agreement between the Parties.

By purchasing products from the Supplier and electing to have the products delivered to it, the Customer agrees to the shipping terms of the courier appointed by the Supplier. The Supplier is not responsible for any delays caused by courier services.

All risk in the products passes to the Customer on delivery thereof at the delivery address so specified by the Any individual at the delivery address who accepts a delivery from the Supplier is presumed to be authorised to receive such delivery.

In the event that the Customer makes its own arrangements for transport and delivery of the Supplier’s products, then all risk in respect of the products shall pass to the Customer upon the Customer’s acceptance of the products from the Supplier’s premises.

If the Customer has no special requests concerning packaging, route, and manner of transport, these will be chosen in the Supplier’sreasonable Any additional costs resulting from the Customer’s special requests will be payable by the Customer.

If the Customer requests a postponement of the shipment of an order, the Supplier may in its sole discretion grant a reasonable postponement. After the expiration of this period, the Supplier may immediately dispatch the products to the Customer.

Notification of Defects

Notification of recognisable material defects must be made in writing to the Supplier within two weeks after delivery of the products to the Customer, alternatively within two weeks of installation and testing of the products, if applicable.

The Customer must afford the Supplier an opportunity to assess the products for material defects. To this end, the Customer must make the allegedly defective products available for inspection without undue delay and at its own expense.

If, following evaluation by the Supplier, the allegedly defective products are proved to be free of defects, the Supplier will be entitled to invoice the Customer for all necessary costs incurred as a result of the unjustified notification and consequent evaluation of the products.

If a defect is not brought to the Supplier’s attention within the above-mentioned period, the Supplier is released from all liability in this respect, unless such defect is proved by the Customer to have been a latent defect.

Deficiencies of parts of the products delivered do not entitle the Customer to reject the whole delivery unless the partial delivery is of no interest to Customer.

Warranty for Defects

In the event of the products being defective and/or damaged upon delivery thereof to the Customer, the Customer shall be entitled to request a replacement of the effected products alternatively to be reimbursed for the effected products.

Warranty does not include normal wear and tear or damages resulting from the Customer’s negligent acts and/or omissions.

Warranty claims cannot be transferred to any third party without the Supplier’s prior written consent, which will not be unreasonably Warranty will be forfeited when unauthorised service providers or installers install or service the products supplied by the Supplier.

The Supplier does not assume liability for deficiencies of alterations and repair works on part of the Customer or any third party.

It is known to the Customer that software cannot be completely faultless due to the present state of Possible claims of theCustomer for remedy in case of substantial deficiencies are already achieved by the Supplier describing to the Customer reasonablepossibilities for the prevention and avoidance of software errors. As far as a software error cannot be removed in this way, the Supplier’s warranty is limited to the supply of additional software by giving the Customer access to the Supplier’s customer portal in order todownload software updates. The downloading itself and the installation are the responsibility of the Customer. Under no circumstances is the Supplier obliged to forward updates without prior contractual agreement. If the deficient software cannot be rectified in the manner specified herein, the Customer shall be entitled only to demand a refund of any fees paid in respect of such deficient software. Any request for modified management reports, from the original data will be for the Customer’s account. When systems are migrated due tolater version software and management reports are not compatible, any modification will be for the Customer’s account, based on quotation.

Indemnification and Limitation of Liability

Neither the Supplier nor any of its directors, shareholders, partners, employees, agents, consultants, contractors, representatives, successors, transferees and assignees (collectively „the indemnified parties“) shall be liable to the Customer for any act or omission whatsoever and howsoever arising, save for and apart from an act or omission which is grossly negligent or constitutes wilful misconduct and results in the Customer’s liability or loss.

For the duration of this Agreement, the Customer shall and hereby does further indemnify and release the indemnified parties from, against and in respect of any and all claims asserted by and on behalf of any person arising from, relating to, or associated with the performance or provision or failure to perform or provide by the Supplier for any of the products or services or obligations pursuant to these Terms and Conditions or any damage or destruction to or theft from the Customer, or any property, or death of or injury to or loss suffered by any person howsoever arising provided, however, that such indemnification and release shall not extend to any amount of damages that are determined to be attributable to the gross negligence or wilful misconduct of the indemnified parties.

The Supplier will be under no liability to the Customer or any other person whatsoever under or pursuant to these Terms and Conditions for any consequential, incidental, indirect or special damages or loss whatsoever and regardless of whether such liability is based on breach of these Terms and Conditions, delict or otherwise, and the Customer indemnifies the Supplier accordingly. The Supplier shall use its best endeavours to ensure that no losses or damage of this nature shall occur.

For the duration of the Agreement, the Customer shall and hereby does further indemnify and release the indemnified parties from, against and in respect of any and all claims asserted by and on behalf of any person arising from, relating to, or associated with the performance or provision or failure to perform or provide by the Supplier for any of the products or services or obligations these Terms and Conditions.

Notwithstanding anything to the contrary contained herein, and in the event that the Customer proves to the satisfaction of any Arbitrator, Court or Tribunal with jurisdiction, any damages against the Supplier, the quantum of such damages will be limited to no more than the value of the Supplier’s consideration in terms of a particular order.

Reservation of Proprietary Rights

All products delivered (reserved products ) remain the Supplier’s property until paid for in full to

All Intellectual Property Rights including, but not limited to, software, copyright, trademarks, trade names, registered design, service marks, patent rights, trade secrets and know how or other industrial or intellectual property rights relating to any products owned by a Party, its agents, vendors, suppliers and/or subcontractors, and the software used to implement such products, shall at all times remain the sole property of such Party, its agents, vendors, suppliers and/or subcontractors.

Notwithstanding anything seemingly to the contrary contained herein, a Party shall not acquire any right, title, or interest in and to any software, trade secrets, copyright, patents and other intellectual proprietary rights of the other Party or the other Party’s agents, vendors,suppliers and/or subcontractors to which it is granted use and/or access in terms of or for the purposes of this Agreement. Neither Party shall in any way or manner use or adapt the Intellectual Property rights of the other Party to create any derivative works without theexpress prior written consent of the other Party which consent it shall be entitled to withhold in its sole and absolute discretion.

Neither Party shall in any manner alter, obscure, use or affect the display of the respective Intellectual Property rights (and disclaimers)of the other Party, its agents, vendors, suppliers and/or subcontractors, without the prior written approval of the other Party, vendor, supplier, or subcontractor or permit any other person to use or sublicense such Intellectual Property rights.

Confidentiality

The Parties shall keep the existence and terms of these general terms and conditions confidential, save to the extent required to perform its obligations and exercise its rights hereunder.

The Parties acknowledge that they may obtain knowledge of the confidential information of the other Party in their performance of their obligations in terms of an order. All information so received by either party, shall be regarded as confidential information and both parties hereby undertake to keep confidential and not disclose any such information, save as is necessary in performance of their obligations herein, or in compliance with any applicable law, order of any court of competent jurisdiction or the directions of any applicable regulatory authority.

Force Majeure

Neither party will be liable for any delays or failures to perform its obligations (other than payment obligations) hereunder resulting from any law or any action taken by a government or public authority, including, without limitation, imposing an export or import restriction or prohibition, the closure or requisition of premises, imposing a restriction or prohibition on the production of product or the movement of people or products, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; and any interruption or failure of electricity or other utility service (“Force Majeure Event”). In the event of such delays or failure(s) to perform, the affected party shall immediately notify the other party of the existence and nature thereof, and should such Force Majeure Event persist for more than 30 consecutive days, the other party shall be entitled by written notice to the affected party to cancel this agreement or any outstanding order.

Governing Law

These terms and conditions are governed by and interpreted in accordance with the laws of the Republic of South Africa. The Customer hereby consents and submits to the jurisdiction of the South African courts regarding all proceedings, actions, applications, or the like instituted by either party against the other, arising from any of these terms and conditions.

Dispute Resolution

In the event of any dispute, question or difference arising at any time between the Parties with regard to any matter arising out of, or with regard to the rights and duties of any of them under, or with regard to the interpretation of these terms and conditions (“Dispute”), the Parties agree that they shall meet on an informal and without prejudice basis, with a view to exploring a possible resolution of the Dispute. A meeting of the sort contemplated herein shall occur within 5 days of any of the Parties addressing a written communication to any other Party identifying the Dispute.

In the event that the Parties are not able to resolve the Dispute within 5 Days of same being declared (or within any agreed extended period) then and in such event the Parties shall submit the Dispute to non-binding mediation, which mediation shall be administered in accordance with the Mediation Rules of the Arbitration Foundation of Southern Africa (“AFSA”). In this regard the Parties shall, by agreement, nominate a mediator who shall not have any right or entitlement to issue an award and/or decision which is binding on the Parties. In the event the Parties cannot reach agreement on the identity of the mediator, then and in such event the Chairperson of the Cape Bar Council shall nominate the mediator.

Should the Dispute not be resolved via non-binding mediation within 15 days of either Party calling for the mediation, the Dispute shall be resolved by way of arbitration.

The arbitration shall be held in Cape Town in accordance with the provisions of the Arbitration Act, No. 42 of 1965 (as amended or replaced from time to time) save that the arbitration shall be informal and that the arbitrator shall have the discretion to determine the procedure to be adopted at the hearing, with a view to it being completed as soon as possible.

The arbitrator shall be agreed upon between the parties with due regard being had to the nature of the dispute.

If agreement cannot be reached on the appointment of the arbitrator within 5 (five) days after the arbitration has been requested, then the Chairperson for the time being of the Cape Bar Council (or its successor body), shall, upon the request of any party, nominate the arbitrator as soon as possible after he has been requested to do so.

In the absence of manifest error, the decision of the arbitrator shall be final and binding, shall not be subject to appeal, shall be carried into effect by the Parties and may be made an order of any court of competent jurisdiction.

Each Party shall bear their own costs of the “without prejudice” meeting (clause 12.1) and the non-binding mediation (clause 12.2) but shall be jointly and equally liable for the costs of the mediator irrespective as to the outcome of such mediation.

The costs of the arbitration shall be determined by the arbitrator. Pending the arbitrator’s decision, the Parties agree that each Party shall be liable in equal shares for the costs of the arbitrator, the venue and any other costs pertaining to the administration of the arbitration (the so-called middle costs).

The inclusion of the alternate dispute resolution processes (“ADR processes”) provided for in this clause 12 shall not preclude any Party from applying to Court for an interdict, a mandamus or relief of any other similar nature, provided however that the launching of an application shall not suspend or interfere with any of the ADR processes referred to herein.

Notices

The Supplier chooses Unit L2, Centurion Business Park, Democracy Way, Montague Gardens, Cape Town, as its physical address and admin@kaba.co.za as its email address for the service of all formal notices and legal processes in connection with these terms and conditions (“Nominated Address”). The Supplier may change these addresses from time to time by written notice to the Customer.

The Customer selects the physical and email addresses specified on the inquiry form as its Nominated Address. The Customer may change it to any other address by giving the Supplier not less than 7 (seven) days’ notice in writing.

Any notice given by either party to the other (the “Addressee”) which is delivered by hand between the hours of 09:00 and 17:00 on any business day to the Addressee’s physical Nominated Address for the time being shall be deemed to have been received by the Addressee at the time of delivery.

Any notice given by either party to the other which is successfully transmitted by email to the Addressee’s email Nominated Address email for the time being shall be deemed (unless the contrary is proved by the Addressee) to have been received by the Addressee on the day immediately succeeding the date of successful transmission thereof.

This clause shall not operate so as to invalidate the giving or receipt of any written notice which is actually received by the Addressee other than by a method referred to in this clause.

Any notice in terms of or in connection with these terms and conditions shall be valid and effective only if in writing.

General

The Customer may not cede, assign, or otherwise transfer its rights and obligations in terms of these Terms and Conditions to any third party.

No variation, addition, deletion, or agreed cancellation of the Terms and Conditions will be of any force or effect unless in writing and accepted by or on behalf of the parties hereto.

If any term or clause of these Terms and Conditions should be found to be invalid, or unenforceable for any reason whatsoever, then the remaining terms shall be deemed to be severable therefrom and shall continue to be of full force and effect to the maximum extent permissible by law.

Any indulgence, extension of time, relaxation, or latitude which any party (the “grantor”) may show grant or allow to the other (the “grantee”) shall not constitute a waiver by the grantor of any of the grantor’s rights and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future.