TERMS AND CONDITIONS
1.INTERPRETATION
1.1In this agreement and the recitals, unless clearly inconsistent with or otherwise indicated by the context:
1.1.1any reference to the singular includes the plural and vice versa;
1.1.2any reference to natural persons includes legal persons and vice versa; and
1.1.3any reference to a gender includes the other genders.
1.2Where appropriate, meanings ascribed to defined words and expressions in 2, shall impose substantive obligations on the parties.
1.3The clause headings in this agreement have been inserted for convenience only and shall not be taken into account in its interpretation.
1.4Words and expressions defined in any sub-clause shall bear the meanings assigned to such words and expressions in this entire agreement.
1.5In the event that the date for the performance of any obligation or the exercise of any right in terms of this agreement falls on a day which is not a business day, then the relevant date for performance of any obligation or the exercise of any right in terms of this agreement shall be the immediately succeeding business day.
1.6When any number of days or other period is prescribed in this agreement, it shall be calculated 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 event the last day shall be the immediately succeeding business day.
1.7The expiry or termination of this agreement shall not affect such of the provisions of this agreement as expressly provided 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.
1.8Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
1.9The use of the word "including" followed by a specific example or examples shall not be construed or interpreted as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording and/or such specific example or examples.
1.10In the interpretation of this agreement, the contra proferentum rule of interpretation shall not apply nor shall this agreement be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this agreement.
1.11The words "material" and "materially" means, when used as an adjective in conjunction with an event, condition, circumstance, effect, or other item, that there is a substantial likelihood that a reasonable person will in the matter concerned attach importance to the event, condition, circumstance, effect, or item in evaluating the party to which it relates and/or the event, condition, circumstance, effect, or other item contemplated in this agreement.
1.12This agreement shall be governed by and interpreted in accordance with the laws of the RSA.
2.DEFINITIONS
In this agreement, unless the context otherwise indicates:
2.1ʺaffiliateʺ means an SMD affiliate or an applicant affiliate, as the case may be and as the context may require;
2.2“agreement” means these terms and conditions entered into between the applicant and SMD, subject to
2.3clause 3 and as may be amended from time to time;
2.4ʺapplicable law(s)ʺ means any statute, regulation, notice, policy, directive, ruling or subordinate legislation; the common law; any binding court order, judgment or ruling; any applicable industry code, policy or standard enforceable by law;
2.5"applicant" means the applicant signatory and each applicant affiliate, collectively or individually, as the context may require;
2.6"applicant affiliate" means, in relation to the applicant signatory (a) a subsidiary or a holding company or a subsidiary of the holding company of the applicant signatory. For purposes of this definition the terms “subsidiary” and “holding company” shall have the meaning assigned thereto in section 1 of the Companies Act, provided that these terms shall also include any foreign entity which, had it been registered in terms of that Act, would fall within the ambit of either of these terms; and/or(b) any other entity that, now or in the future, directly or indirectly, effectively controls, is effectively controlled by, or is under common effective control by another entity together with the applicant signatory. For the purposes of this definition the term ʺeffective controlʺ shall include control of any entity through any voting pool or other arrangement, the right to the exercise of voting rights, directly or indirectly, resulting in effective control of any entity and/or control of its management, and/or the right to appoint the majority of the members of the board of directors of any entity;
2.7ʺapplicant signatoryʺ means the entity or natural person, as the case may be, that has concluded this agreement with SMD or any of the SMD affiliates, in accordance with the provisions of clause 3, thereby binding each applicant affiliate to this agreement;
2.8“brick and mortar store” means a traditional physical store that offers products to customers for face-to- face sales;
2.9"business day" means any day other than a Saturday, Sunday or public holiday officially recognized as such in RSA and "business days" has a corresponding meaning;
2.10ʺCompanies Actʺ means the Companies Act, No. 71 of 2008, as amended from time to time, together with the regulations promulgated in terms thereof;
2.11"CPA" means the Consumer Protection Act, 68 of 2008, as amended from time to time, and the regulations promulgated in terms thereof;
2.12“credit approved applicant” means an applicant who has been approved for a line of credit on terms and conditions as determined in SMD’s sole discretion;
2.13“EFT” means an electronic fund transfer of money;
2.14“goods” means goods as defined in the CPA and shall further include the products in whatever form (including goods, services, merchandise and/or produce) ordered by the applicant from SMD or supplied to the applicant by SMD;
2.15“intellectual property” means patents, rights to inventions, printing plates copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in Confidential Information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
2.16"order" means an order for goods placed by the applicant with SMD;
2.17“online platform” means a website or application by means of which goods are sold over the internet;
2.18"parties" means SMD, and the applicant and "party" means either one of them as the context may indicate;
2.19"personal information" shall have the meaning ascribed to it in Chapter 1 of POPIA;
2.20"POPIA" means the Protection of Personal Information Act, No 4 of 2013, as amended from time to time, including any regulations and/or code of conduct made under the Act;
2.21"processing” shall have the meaning ascribed to it in Chapter 1 of POPIA;
2.22“record” shall have the meaning ascribed to it in Chapter 1 of POPIA;
2.23“responsible party” shall have the meaning ascribed to it in Chapter 1 of POPIA;
2.24“RSA” means the Republic of South Africa;
2.25ʺsignature dateʺ means the date of signature of this agreement by the party signing last in time;
2.26ʺSMDʺ means SMD Technologies Proprietary Limited, a private company duly incorporated under registration number: 2015/107/801/07, in accordance with the laws and regulations of the RSA;
2.27"VAT Act" means of the Value Added Tax Act, No 89 of 1991, as amended from time to time, together with the regulations promulgated in terms thereof.
3.AFFILIATES
3.1The signatories record their intention that this agreement shall regulate the relationship not only between themselves but also in respect of all their affiliates.
3.2On each occasion that a new agreement is concluded, the provisions of clause 3.1 shall operate new so as to bind all the parties to this agreement, notwithstanding that they may already be so bound; provided that no party shall there by forfeit any existing rights or be released from any existing obligations.
4.NATURE OF THIS AGREEMENT
Upon signature date or any other date as set out in clause 21.4, the relationship between the parties shall be governed in accordance with the terms and conditions set out in this agreement.
5.QUOTATIONS
5.1Any quotation provided by SMD shall remain valid for a period of 7 business days from the date that the quotation is transmitted to the applicant, alternatively until the date of issue of a new price list by SMD, whichever occurs first.
5.2A quotation may be revoked by SMD at any time before written notification of acceptance is received from the applicant.
5.3All quotations are subject to the availability of the goods.
5.4 A quotation shall become valid and binding upon acceptance by the applicant, in writing, which acceptance shall be deemed to take place at the head office of SMD in Johannesburg.
5.5All prices are exclusive of VAT, which shall be payable by the customer at the prevailing rate in terms of the VAT Act.
6.VALID ORDERS
6.1In the event that an order is placed by telephone, the order must be confirmed in writing, prior to acceptance by SMD. SMD shall not be responsible for any errors or misunderstandings that may occur when orders are placed telephonically.
6.2Upon receipt of any order received by SMD, which reflects the applicant’s name as the entity from which the order emanates, SMD shall be entitled to assume that the order has emanated from the applicant, notwithstanding the fact that such order may have been given or signed by a person not authorized to do so. Such order shall constitute a valid order and the applicant shall be bound by the order.
6.3It is the sole responsibility of the applicant to determine that goods ordered are suitable for the purposes of the intended u se and the applicant indemnifies SMD in the event that the goods are not suitable for the intended use unless the applicant has been advised, in writing, by SMD that the goods are suitable for the specified purpose.
6.4No variations to an order shall be binding on SMD unless SMD has accepted the variation and sent an updated quotation to the applicant, and the applicant has accepted the quotation.
6.5It is specifically recorded that any terms and conditions accompanying the applicant’s purchase order, not agreed
6.6to inwriting by an authorized representative of SMD, shall be of no force and effect.
7.PAYMENT TERMS
7.1The applicant agrees that any amount reflected in a tax invoice shall be due and payable unconditionally as follows:
7.1.1by way of EFT prior to delivery; or
7.1.2in the event that the applicant is a credit approved applicant, within 30 calendar days from the end of the month in which a tax invoice, or
7.1.3on any other payment terms provided to the applicant by SMD.
7.2Any credit facilities granted to the applicant by SMD are entirely at the discretion of SMD and may be withdrawn, with immediate effect, at any time without further notice to the applicant.
7.3In the event that the applicant has not used a facility under this agreement for 12 months, SMD may elect to close the account, in which event the applicant shall be required to reapply for a credit facility.
7.4All payments shall be made by way of EFT into SMD’s nominated banking account as per the banking details reflected on the sales order. Payment shall be made to SMD free of exchange and without set-off or deduction of any kind whatsoever.
7.5In the event of any payment being erroneously transferred into the incorrect banking account the applicant shall remain liable to SMD for the entire amount due.
7.6Should the applicant at any time receive a notification that SMD’s nominated banking details have changed, the onus shall vest with the applicant to confirm such change with an authorized representative of SMD prior to effecting any payment, which obligation shall arise prior to any payment becoming due.
7.7Any dispute regarding an invoice must be notified to SMD in writing within seven days of the date of the invoice, specifying the disputed amount and the reasons for the dispute, failing which the invoice shall be deemed to be correct. The undisputed balance of any invoice shall remain payable on the due date.
7.8SMD may set off any amount owing by the customer to SMD against any amount owing by SMD to the customer, including any rebate, credit note or refund, whether or not such amount is then due.
8.DELIVERY
8.1Delivery shall be deemed to have taken place against signature of the delivery note.
8.2The applicant agrees that the signature of, inter alia, any agent, contractor, sub-contractor, employee or any person purporting to act on behalf of the applicant on SMD’s delivery note and/or invoice and/or waybill and/or any document of a similar nature, or the delivery note of any independent contractor shall constitute prima facie proof of delivery of the goods.
8.3The applicant hereby acknowledges that any delivery date provided by SMD is an estimated delivery date and SMD shall not be bound by the estimated delivery date.
8.4SMD shall endeavour to ensure that goods are delivered timeously by the estimated delivery date, however, it shall not be responsible for any delays, whatsoever, in the delivery of such goods, and the applicant shall not be entitled to cancel the order or refuse acceptance of any goods not delivered by the estimated delivery date.
8.5In the event that the applicant elects to collect an order and the order is not collected within three business days of placing the order, the order may be cancelled at the sole discretion of SMD, in which event a new order will have to be placed, which could result in increased pricing.
8.6Notwithstanding the ownership of the goods, the risk in and to the goods shall pass from SMD to the applicant on delivery and the applicant shall be responsible for ensuring that all of the goods in its possession are adequately insured and shall provide confirmation thereof to SMD upon being requested to do so.
9.OWNERSHIP
9.1Notwithstanding delivery of any goods, ownership shall vest with SMD until such time as payment has been received in full.
9.2SMD shall, in its sole discretion, without any notice to the applicant, be entitled to take possession of any goods which have not been paid for and in respect of which payment is overdue.
9.3In the event of SMD taking possession of any goods as per clause 9.2, the applicant shall be entitled to a credit in respect of the goods at the price at which the goods were sold to the applicant or the lessened value thereof in the event that the goods are no longer considered within their original undamaged packaging, which determination shall be made at SMD’s sole discretion. Any costs associated with SMD taking possession of the goods shall be set- off by SMD against any credit due to the applicant.
9.4In the event that SMD elects to take possession of the goods, the applicant hereby waives any right that it may have in respect of spoliation.
9.5The applicant shall take all steps as may be necessary to notify any interested third parties that ownership of the relevant goods has not passed from SMD to the applicant.
9.6The applicant hereby indemnifies SMD against any and all damage and costs in relation to the removal of goods from the premises of the applicant or any other premises where the goods may be found.
10.DEFAULT IN PAYMENT
10.1All amounts are payable in full on or before the due date reflected on the relevant invoice, without deduction, withholding or set-off.
10.2If the applicant fails to pay any amount on due date, all amounts owing by the applicant to SMD shall immediately become due, owing and payable.
10.3If any invoiced amount remains unpaid for more than thirty days after its due date, SMD may levy a once-off late payment charge equal to 2% of the principal amount outstanding at the end of that 30-day period. The charge is levied once in respect of each overdue invoice, does not recur, accumulate or compound, is not calculated by reference to the length of the delay, and represents a reasonable pre-estimate of the additional administration and credit control costs caused by the default.
10.4If any amount is not paid on due date, SMD may, without prejudice to its other rights, suspend or withhold further deliveries or performance, withdraw, reduce or amend any credit facility or payment terms granted to the applicant, require payment in advance or in cleared funds for any current or future order, decline to accept further orders until the account is brought up to date, and/or invoke clause 18.
10.5If any charge or remedy in this clause is limited or prohibited by applicable law, it shall apply to the maximum extent permitted by law without invalidating the remainder of these terms.
11.APPLICANT’S WARRANTIES
The applicant warrants that:
11.1the goods are procured for the purposes of resale, either through its own brick and mortar store or its own online platform. The applicant understands that it may not, under any circumstances whatsoever, resell the goods on a third- party online platform (for example, but without limitation, Takealot.com, Gumtree, Loot, eBay, Amazon.com, etc.) and/or resell the goods to any applicant that it reasonably believes intends to further resell the goods (including resale on any online platform). Notwithstanding any other remedy that SMD may have in accordance with this agreement, in the event that the applicant breaches this warranty, SMD shall be entitled, in its sole discretion and without prior notification to the applicant, to sus pend the applicant’s account until such time that SMD is reasonably satisfied that the applicant is no longer in breach of this warranty;
11.2it will at all times conduct itself in good faith in respect of SMD and the goods and will at no time conduct itself in any manner that will cause harm, loss or damage to the goods and/or reputation of SMD;
11.3no representations have been made by SMD pertaining to the suitability of the goods or any of its qualities and further that the applicant has confirmed the suitability of any goods or services prior to placing the order;
11.4it shall notify SMD, in writing, within 20 calendar days of any change in ownership of the applicant’s business, or should the applicant be a company, of its share transactions whereby the majority shareholding is affected. The applicant acknowledges that immediately upon any change of ownership in the applicant any outstanding amount whether due or not shall be deemed to be forthwith payable by the applicant to SMD.
12.INDEMNITY AND LIMITATION OF LIABILITY
12.1The applicant hereby indemnifies SMD, SMD’s officers, agents and employees (hereinafter collectively referred to as “the indemnifieds”) against all loss, liability, damage, costs and expenses (including legal costs on the scale as between attorney and own client and all additional costs and disbursements and including consequential loss) of every nature whatsoever which the indemnifieds may suffer or incur directly and/or indirectly as a result of and/or which may be directly and/or indirectly attributable to any breach of any of the provisions of this agreement and/or any negligence by the applicant.
12.2The aforementioned indemnification shall remain in effect for a period of five years after the termination of this agreement with respect to any act or omission which shall have occurred during or after the term of this agreement, whether discovered before or at any time subsequent to the termination of this agreement.
12.3SMD shall not be liable to the customer for any indirect, special or consequential loss, or for any loss of profit, revenue, goodwill or business, however arising, and SMD’s total liability arising out of or in connection with any order, whether in contract, delict or otherwise, shall not exceed the price paid by the customer for the goods to which the claim relates.
13.RETURN POLICY
13.1New goods are guaranteed according to either SMD’s specific warranties, or the original manufacturer’s warranties. Where indicated certain goods may be sold to the applicant on the basis of SMD not accepting any responsibility for latent defects in which case any product warranties are specifically excluded.
13.2Returns will be dealt with in accordance with SMD’s return policy which is subject to change from time to time and may be requested from SMD.
14.INTELLECTUAL PROPERTY
The applicant acknowledges that all intellectual property belonging to SMD shall at all times remain the sole and exclusive property of SMD and that the applicant shall at no stage, whatsoever, have any claim in respect thereof.
15.FORCE MAJEURE
SMD shall not be liable to the applicant for any delay in or failure to fulfil or perform its obligations under this agreement if and to the extent that such delay or failure is caused by circumstances beyond SMD’s reasonable control including, for example, flood, fire, earthquake, war, tempest, hurricane, national industry-wide strike, government restrictions, looting, rioting and/or acts of God. SMD shall notify the applicant, as soon as is reasonably possible, of the occurrence of a force majeure event.
16.PRIVACY
16.1The parties shall fully comply with the statutory obligations contained in POPIA, with which the parties warrant that they are fully conversant at signature date, when processing personal information obtained by the responsible party and such personal information is entered into a record. Without limiting the generality of the aforesaid the responsible party shall ensure that the privacy and data protection conditions are strictly adhered to when processing the data subject’s personal information.
16.2The parties shall comply with the security and information protection obligations equivalent to those imposed on them in terms of POPIA and other applicable data protection legislation, and failing such legislation, they shall take, implement and maintain all such technical and organizational security procedures and measures necessary or appropriate to preserve the security and confidentiality of the personal information in its possession and to protect such personal information against unauthorized or unlawful disclosure, access or processing, accidental loss, destruction or damage.
16.3Each party (“the indemnifying party”) hereby indemnifies and holds the other party harmless from any liability whatsoever arising from the Indemnifying party’s failure to comply with its statutory obligations contained in POPIA.
16.4Each party shall only provide, collect, use, store or process personal information:
16.4.1in compliance with POPIA;
16.4.2as is necessary for the purposes of this undertaking; and
16.4.3in accordance with the lawful and reasonable instructions of the party providing the personal information.
17.APPLICANT’S CONSENT TO SHARE PERSONAL INFORMATION
The applicant hereby consents that SMD shall be entitled to utilize its personal information to:
17.1conduct a credit enquiry on the applicant and/or any directors, members, partners, trustees, shareholders and any other necessary person associated with the applicant from time to time with one or more credit bureaus, credit information agent s, credit insurance companies or other creditors (trade references) of the applicant in terms of this agreement;
17.2transmit details to credit bureaus, credit information agents, credit insurance companies or other creditors of the applicant in respect of the applicant’s performance in respect of meeting its obligations as set out in this agreement;
17.3record any non-performance of payment commitments with credit bureaus, credit information agents, credit insurance companies or other creditors of the applicant.
18.BREACH
18.1In the event of the applicant committing a breach of any of the provisions of this agreement, and failing to remedy such breach within 7 business days of being called upon by SMD to do so, SMD shall, without prejudice to any other rights it may have, be entitled to:
18.1.1claim immediate payment of any amount owing to it, as well as payment of all other sums due to; and/or
18.1.2cancel the agreement and take possession of the goods; and/or
18.1.3claim any damages SMD may have suffered as a result of the applicant’s breach.
18.2In the event of a default, SMD shall be entitled, in its sole discretion, to appropriate any payments made by the applicant to SMD towards any legal costs incurred by SMD in connection with the recovery of any such default, on an attorney and own client scale, and any interest due in accordance with this agreement and then to any amount owing by the applicant.
18.3A certificate signed by any director of SMD, reflecting the amount owing by the applicant to SMD in respect of any amount owing shall be prima facie proof of the applicant’s indebtedness to SMD as well as the quantum of the indebtedness and shall constitute a liquid document. The onus shall vest with the applicant to prove that such reflects the certificate is incorrect.
19.TERMINATION
Notwithstanding anything to the contrary herein contained, this agreement may be terminated by SMD forthwith, without prior notification to the applicant, if:
19.1an order is made by any court of competent jurisdiction, whether provisional or final, for the winding up or judicial management of the applicant:
19.2the applicant passes a resolution to institute business rescue proceedings or for its voluntary winding up;
19.3the customer ceases to carry on business or disposes of its business or changes the fundamental nature of its business and/or disposes of the major portion of its assets other than for value;
19.4the applicant assigns its rights under this agreement to any third party without the prior written consent of SMD;
19.5the applicant compromises generally with its creditors otherwise than in the course of the re-structuring of its capital or the merger of the applicant with a third party;
19.6the applicant or directors/partners of the applicant are convicted and found guilty of a major infringement as determined solely at SMD’s discretion, and in SMD’s sole opinion such eventuality may impair the ability of the applicant to comply with this agreement or harm SMD’s reputation.
20.NOTICES AND DOMICILIUM
20.1The applicant appoints as their domicilium citandi et executandi the physical address and email address set in the dealer application form completed by the applicant, for the purposes of giving or sending any notice provided for or required under this agreement and SMD appoints the following address:
2 Lascelles Road, Meadowbrook, Edenvale, 1609 accounts@smdtechnologies.com
20.2A party may change its domicilium or its addresses for the purposes of notices to any other physical address or electronic mail address, by written notice to the other party to that effect. Such change of address will be effective 5 (five) business days after receipt by the other party of the notice of the change.
20.3All notices to be given in terms of this agreement will be given in writing, in English, and will be delivered by hand or sent by electronic mail:
20.3.1if delivered by hand during business hours, be presumed to have been received on the date of delivery. Any notice delivered after business hours or on a day which is not a business day will be presumed to have been received on the following business day; and
20.3.2if sent by email during business hours, be presumed to have been received when the email enters an information system designated or used for that purpose by the addressee and is capable of being retrieved by the addressee.
20.4Notwithstanding the above, any notice given in writing in English, and actually received by the party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause.
21.GENERAL
21.1Each provision of this agreement is separate and severable from the other provisions. Should any provision hereof be found by a court of competent jurisdiction to be invalid or unenforceable for any reason, the parties will consult with one another in good faith in order to agree, if possible, an alternative provision in accordance with the intent and tenor of this agreement. The remaining provisions of this agreement shall nevertheless remain binding and continue with full force and effect.
21.2No indulgence which SMD may grant to the applicant shall constitute a waiver of any rights of SMD, and SMD shall not thereby be precluded from exercising any rights against the applicant which may have arisen in the past or which might arise in the future.
21.3The applicant shall not without the prior written consent of SMD, cede, delegate, assign or otherwise transfer or encumber all or any of its rights or obligations under this agreement.
21.4This agreement sets out the entire agreement and understanding between the parties in connection with the subject matter thereof. No party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like, not recorded herein. Notwithstanding a foregoing, SMD may, in its sole discretion, amend this agreement from time to time. Any such changes or amendments will be contained in a new document available free of charge on SMD’s website and the applicant’s signature or placement of any subsequent order will signify and constitute the applicant’s acceptance of any changes or amendments to this agreement.
21.5Upon a termination of this agreement for whatever reason, these provisions of this agreement which of necessity need to continue to be of force and effect shall survive termination.