GENERAL TERMS AND CONDITIONS OF PURCHASE
8. Handling Fee
GENERAL TERMS AND CONDITIONS OF PURCHASE
Wherever the following words or phrases appear in these terms and conditions they shall have the meanings ascribed to them below:
1.1 “Agreement” shall mean these General Terms and Conditions, as amended from time to time, and posted on the Supplier’s website (https://www.firsttech.co.za/legal-notices), and which terms and conditions will apply to all purchases made by the Customer from the Supplier in respect of the Goods;
1.2 “Credit Period” shall mean the period approved by the Supplier in writing, within which the Customer is required to settle an invoice rendered for Goods supplied by the Supplier from time to time, which includes (where applicable) cash on order customers;
1.3 “Customer” shall mean the person or entity who is purchasing Goods from the Supplier under this Agreement who may or may not have completed a Customer Account Application with the Supplier;
1.4 “Goods” shall mean any equipment and/or stock and/or goods and/or hardware and/or consumables and/or software and/or software licences purchased by the Customer from the Supplier from time to time;
1.5 “Parties” shall mean the Supplier and the Customer and “Party” shall mean either one of them as the context may require;
1.6 “Principal Supplier(s)” shall mean the supplier(s) or manufacturer(s) from whom the Supplier purchases Goods from time to time in terms of the Supplier’s Agreement with the Principal Supplier;
1.7 “Specific Terms” shall mean any specific terms and conditions applicable to the Goods as prescribed by the Supplier and/or the Principal Supplier and/or manufacturer and/or software owner from time to time.
1.8 “Supplier” shall mean the applicable subsidiary of First Technology Investments (Pty) Ltd, Registration Number: 1998/019350/07, from whom the Customer is purchasing the Goods.
1.9 “Software Fees” means the amounts payable for the Software (excluding all other services), as set out in the relevant order accepted by the Supplier;
1.10 “Software” means any software and/or cloud computing services provided by the Supplier under an order including without limit, infrastructure as a service, platform as a service, software as a service and any other software;
2. ORDERS AND QUOTATIONS
2.1 As and when the Customer requires Goods from the Supplier, the Customer shall provide the Supplier with a request to provide the Customer with a quotation for such Goods required (“quotation request”).
2.3 Within a reasonable time of the date of receipt of a quotation request from the Customer, the Supplier shall provide to the Customer a quotation which quotation shall be valid for the period stated therein (if no period is stated it shall be deemed to be valid for a period of 24 hours), but shall be revocable by the Supplier any time prior to acceptance thereof by the Customer.
2.4 If a Customer accepts the Supplier’s quotation, the Customer shall render a purchase order for the Goods, which shall constitute a binding agreement and these terms and conditions, the Specific Terms, as well as any additional conditions contained in the quotation shall apply to such agreement. For the sake of clarity, the Customer expressly acknowledges that its terms and conditions (including any contained on its purchase order) shall be of no force and effect and shall not be binding on the Supplier.
3. PRICE AND PAYMENT
In respect of all orders, unless the contrary is stated, the following price and payment terms will app
3.1 Prices contained on the quotation are exclusive of Value Added Tax (VAT), which shall be payable by the Customer.
3.1.1 In addition to any quotation or invoice rendered by the Supplier to the Customer, the Customer shall further be obliged to pay to the Supplier: (i) the amount of any tax, duty or other charge that may be imposed by any lawful authority, which comes into force in respect of an order after a quotation and/or an invoice was rendered; (ii) the amount of any increases in the prices charged by the Principal Supplier, rates of exchange, freight charges, insurance, railage, costs of labour and materials or any other charges after date of quotation; (iii) any other additional costs in respect of an order of any nature whatsoever incurred as a result of any delay caused by the Customer, including storage fees if applicable; (iv) any expense incurred by the Supplier at the instance of the Customer in modifying, altering or making additions to the design, quantities or specifications for standard Goods, and any expenses arising as a result of delays due to instructions given, or a failure to give instructions by the Customer.
3.2 Payment by the Customer to the Supplier shall be made:
3.2.1 prior to the expiry of the Customer’s approved Credit Period, or if there is no Credit Period has been approved, cash on order.
3.2.2 by electronic fund transfer together with VAT, and free of exchange and without any deduction or set off;
3.2.3 into the nominated bank account of the Supplier or into such other bank account as the Supplier may direct from time to time in writing;
188.8.131.52 Any changes to the Supplier’s bank account details are only valid if provided by a financial manager of the Supplier, on a Supplier letterhead, and sent from a Supplier email address. Customer bears any risk should it act on changes to the Suppliers bank account details that are not in accordance with the aforegoing.
4.1 The Supplier shall use its best endeavours to make delivery as near as possible as to the time frames indicated on the quotation.
4.2 The Supplier shall keep the Customer informed of any delays in delivery, and late delivery does not entitle the Customer to resile from the Agreement, to withhold or defer any payment, to a reduction in price, nor to any other remedy against the Supplier on account of delays in effecting delivery.
4.3 Should the Customer instruct the Supplier to engage a third party on the Customer’s behalf to attend to the delivery of the Goods:
4.3.1 The Customer indemnifies the Supplier against any claims that may arise against the Supplier from such an instruction by the Customer;
4.3.2 The Customer shall reimburse the Supplier for any costs incurred in arranging such delivery, including but not limited to, the costs of necessary disbursements and insurance.
4.3.3 The Goods shall be deemed to have been delivered to the Customer upon collection of the Goods from the Supplier by the third party, or upon delivery by the Supplier to the third party.
5. RISK OF DAMAGED, DESTROYED AND/OR MISSING GOODS
5.1 The risk of damage to, or destruction of, any relevant Goods passes to the Customer on delivery thereof by the Supplier to the Customer, at the delivery destination.
5.2 The Customer shall be obliged to inspect all Goods upon delivery thereof and shall endorse the delivery note as to any missing or damaged Goods, failing which no claims for missing or damaged Goods shall be valid. Any signature on the delivery note by the Customer or the person taking delivery on behalf of the Customer shall be deemed to confirm complete delivery.
5.3 The Customer shall be obliged to furnish information necessary to enable delivery of the relevant Goods to be effected and if the Customer fails or refuses to do so, or if it fails or refuses to take delivery, the Goods shall be deemed to have been delivered to the Customer upon notification.
5.4 Ownership of the Goods purchased shall only pass from the Supplier to the Customer upon payment in full to the Supplier.
6.1 Where applicable, services are provided by the Supplier subject to the terms of the Supplier’s standard master services agreement, together with any applicable scope of work or similar document.
7. WARRANTIES AND GUARANTEES
7.1 Insofar as the manufacturer/ software vendor gives any warranty and/or guarantee in respect of the Goods, the Supplier shall as far as possible pass such warranty/guarantee onto the Customer and provide reasonable assistance to the Customer to perfect such warranty and/or guarantee. The Supplier does not provide any warranty and/or guarantee to the Customer in respect to the Goods on any kind whatsoever, and any applicable warranties will flow directly from the applicable manufacture/software vendor.
7.2 All specifications, descriptive matter, drawings and other documents furnished by the Supplier to the Customer, are approximate only and the Supplier cannot be held responsible for loss due to discrepancies therein.
8. HANDLING FEE
8.1 If the Customer requests to return Goods to the Supplier for any reason whatsoever other than in terms of any manufacturer’s warranty or guarantee, the Supplier reserves the right to levy a handling fee of 10% (ten per cent) of the purchase price of such Goods returned. The Supplier is not obliged to accept the return of any Goods and shall, at its discretion, render assistance in this regard as an additional separate and discretionary service to the Customer.
9. WARRANTY RETURNS
9.1 To the extent that the Goods supplied by the Supplier are in any way defective, the Customer shall be entitled, within the warranty period, and subject to the terms of the warranty, applicable to such Goods and at the sole discretion of the Supplier, to either a repair or replacement of such defective Goods or the granting of credit. This clause 9.1 shall at all times be subject to the following:
9.1.1 The Customer notifying the Supplier within 7 (seven) days of such defect arising, which notice must be in writing, and must clearly specify the alleged defect, and be supported by the original tax invoice;
9.1.2 The Goods must be returned by the Customer to the Supplier, at the Customers expense, packaged in their original or suitable packing material, together with all manuals, accessories, and other parts provided with the Goods;
9.1.3 The Goods being returned must still be covered by a valid manufacturer warranty and/or guarantee at the time of return, as confirmed by the Supplier.
9.1.4 The Supplier shall be relieved of all obligations in terms of clause 9.1 should: (i) repairs be made to the Goods by any unauthorised third party; (ii) any modifications have been made to the Goods; (iii) the Goods have been used or operated with any accessory, equipment, or part not specifically supplied and/or approved by the manufacturer and/or the Supplier in writing; (iv) the Goods have not been operated or maintained in accordance with the manufacturers and/or the Suppliers instructions; or under normal use; or have been incorrectly installed; (v) the Goods have been used contrary to the terms of the applicable manufacturer warranty and/or guarantee.
9.1.5 All Goods supplied which are software are only supplied “as is". The sole obligation of the Supplier in connection with the supply of Goods which are software is to use all reasonable endeavours to obtain and supply a corrected version from the manufacturer concerned in the event that such software should fail to conform to the specification provided always that the Customer notifies the Supplier of any such non-conformity within 90 days of the date of delivery of the applicable software Goods.
10. SOFTWARE AND CLOUD SERVICES
10.1 All Software (including cloud software) are subject to the terms and conditions prescribed by the applicable manufacturer, including but not limited to automatic renewal terms, price changes, and acceptable use policies, all of which are expressly incorporated herein by reference and shall be binding upon the Customer upon purchase of the applicable Software;
10.2 All Software shall also be subject to the Software minimum terms and conditions attached as Schedule A to this Agreement.
10.3 In addition to the above, the Customer expressly acknowledges and agrees that where the Software being purchased is Microsoft software, whether purchased under the CSP model, Campus Agreement, MPSA, indirect EA or any other applicable Microsoft agreement and/or program, the terms conditions contained in Schedule B to this Agreement shall apply in addition to any terms and conditions prescribed by Microsoft and any other applicable agreement between the Parties.
11.1 The Customer shall pay interest on all amounts owing by the Customer to the Supplier which have not been paid on the due date thereof, at the prevailing South African prime interest rate plus 3% (three percent), calculated from the day payment became due up to and including the final date of payment.
12. LIMITATION OF LIABILITY AND INDEMNITY
12.1 To the extent permitted by applicable law, regardless of the form (whether in contract, delict or otherwise) in which any legal action may be brought, the Supplier’s maximum liability for direct damages for anything giving rise to any legal action shall be an amount equal to the total paid or payable by the Customer to the Supplier in respect of the applicable Goods to which the claim relates.
12.2 To the extent permitted by applicable law, in no event shall either Party be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the supply of the Goods.
12.3 In the event that the Customer, who acts as a supplier for their consumer and as such becomes a supplier as defined in the Consumer Protection Act, Act No 68 of 2008 (“CPA”), does not comply with the provisions of the CPA in any manner whatsoever and the consumer proceeds with a claim against the Supplier, the Customer indemnifies the Supplier against any claims made against the Supplier by the consume
13. CESSION. ASSIGNMENT, AND SUBCONTRACTING
13.1 The Customer shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third party without the prior, written consent of the Supplier.
13.2 It is expressly recorded that the Supplier shall be entitled to cede and assign all rights and obligations under this Agreement on notice to the Customer.
13.3 The Supplier may sub-contract or delegate its obligations under this Agreement to any third-party contractor without notice to, or the consent of, the Customer. The Supplier shall remain liable for performance of such third-party contractors.
14.1 In the event that any party (“the defaulting party”) commits a breach of any of the provisions of this Agreement then any party not in breach (“the aggrieved party”) shall be entitled to give the defaulting party written notice to remedy the breach.
14.2 If the defaulting party fails to comply with that notice within 15 (fifteen) days of receipt thereof, subject to any other provisions of this Agreement to the contrary, the aggrieved party shall be entitled to cancel this Agreement or to claim specific performance, in either event without prejudice to the aggrieved party’s right to claim damages and without prejudice to such other rights as the aggrieved party may have at law.
14.3 Without limiting the generality of the aforegoing, should the Customer: (i) fail to pay any amount payable by it on due date; (ii) commit any act of insolvency or endeavour to compromise generally with its’ creditors; (iii) do or cause to be done anything which may prejudice the Supplier’s rights hereunder or at all; (iv) allow any judgment against it to remain unsatisfied for 7 (seven) days; (v) be placed into provisional or final liquidation, judicial management, sequestration or voluntarily surrender his/her estate;
14.3.1 then Supplier shall have the right to, without prejudice to any other right which it may have against the Customer, to elect to:
184.108.40.206 treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the Agreement and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with the Customer until the Customer has remedied the breach; and/or
220.127.116.11 cancel this Agreement and retake possession of any of the Goods sold.
15.1 Whenever a term is followed by the word “including” or “include” or “excluding” or “exclude” and specific examples, the examples shall not limit the ambit of the term.
15.2 The rule of construction that an Agreement shall be interpreted against the Party responsible for its drafting or preparation shall not apply
15.3 No agreement to alter, vary or cancel this Agreement and no addition or amendment to or deletion from this Agreement shall be of any force and effect unless reduced to writing and signed by all the parties.
15.4 No indulgence, extension of time, relaxation or latitude which any party (“the grantor”) may show grant or allow to the other (“the grantee”) shall constitute a waiver by the grantor of any of the grantor’s rights and the grantor shall not thereby be prejudiced or estopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future.
15.5 In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms shall be severable from the remaining terms, which shall continue to be valid and enforceable.
15.6 This Agreement constitutes the whole Agreement between the parties and supersedes all prior verbal or written Agreements or understandings or representations by or between the parties regarding the subject matter of this Agreement.
15.7 The Supplier shall have the right to update, change or replace any part of this Agreement by posting the changes and updates to the Supplier’s website (https://www.firsttech.co.za/legal-notices).
15.8 Unless the context indicates otherwise the rights and obligations of any party arising from this Agreement shall devolve upon and bind its successors-in-title.
15.9 The parties shall try, in good faith, to solve amicably, and by mutual agreement, any dispute which may arise between them with respect to the Agreement in any way they deem appropriate.
15.10 The laws of the Republic of South Africa shall apply to the interpretation of this Agreement and the Parties accordingly agree that any dispute between the Parties shall be resolved in the Republic of South Africa. The Parties hereby consent to the jurisdiction of the Magistrate’s Court otherwise having jurisdiction in respect of any proceedings (not subject to arbitration in terms of this Agreement) in respect of, or arising out of, this Agreement or it’s cancellation notwithstanding that the amount of the claim may exceed the normal jurisdiction of the Magistrate's Court; this document constituting the required consent by the Parties to the jurisdiction of the Magistrate’s Court in accordance with section 45 of the Magistrate’s Court Act.
15.11 The Customer shall be liable for all costs incurred by the Supplier in the recovery of any amounts, or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale and costs of counsel, whether incurred prior to, or during, the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgement.
15.12 In the event that either party is unable to perform its obligations (excluding a payment obligation) by reason of force majeure, neither party shall have any claim against the other as a consequence of such failure. For the purpose of this Agreement “force majeure” shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, omissions or accidents beyond the reasonable control of the party to perform
15.13 Documents scanned and transmitted electronically as well as documents signed by electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures. The Customer hereby waives any right which it may have to dispute the validity or enforceability of any document or this Agreement by virtue of this Agreement being incorporated by reference and not being physically signed .
16. NATIONAL CREDIT ACT 34 OF 2005
16.1 The Customer hereby warrants that at the time of signature of this Agreement, the combined asset value or annual turnover of the Customer and its’ related juristic persons is equal to, or exceeds, the amount as published from time to time in section 4(a)(i) and section 7(1) of the National Credit Act 34 of 2005.
16.2 The Customer acknowledges and accepts that the Supplier is an incidental credit provider who only charges interest after 30 days, alternatively, on breach of Agreement and, accordingly, it does not have to register as a credit provider as provided for in Section 40 of the National Credit Act 34 of 2005.
17. CONSENT AND CREDIT ACCOUNT FACILITIES AND WITHDRAWAL
17.1 The Customer hereby authorizes the Supplier to do the necessary credit checks and searches and to reveal any information contained herein to any Credit Bureau for the purpose of establishing the Customer’s Credit Record.
17.2 The decision to grant the Customer any credit facilities and the extent thereof shall at all times be at the sole discretion of the Supplier. Notwithstanding any credit limit approved, the Customer will remain liable for all purchases made irrespective of whether it has exceeded the credit limit approved by the Supplier.
17.3 The Supplier may, at any time and in its discretion, terminate this Agreement and/or the Customer’s credit facilities on written notice to the Customer in which case all amounts outstanding shall immediately become due and payable by the Customer.
18. PERSONAL INFORMATION
18.1 Each Party warrants that it shall, at all times, comply with the provision of the Protection of Personal Information Act 4 of 2013, as amended (“Act”).
18.2 The Customer hereby consents to the Supplier processing (or permitting a third party to process) any data or personal information of the Customer, subject to any applicable laws, as provided for below.
18.3 During the course of its engagement with the Customer, the Supplier will be required to collect, process, transfer and store personal information provided or otherwise made available by the Customer to the Supplier.
18.4 In order for the Supplier to ensure its compliance with the requirements of the Act it requires certain consents from the Customer, and as such the Customer agree and consent to the following:
18.4.1 The Supplier processing any personal information received from the Customer as is necessary in order for the Supplier to perform its obligations and/or enforce its rights in terms of any agreements it may have with the Customer and/or as is authorised in terms of the Act.
18.4.2 The Supplier processing any personal information received from the Customer in accordance with (i) the conditions of lawful processing as set out in the Act, (ii) the terms of the Supplier’s Data Privacy and Security Policy (https://www.firsttech.co.za/legal-notices); and (iii) any other applicable signed agreement entered into between the Customer and the Supplier. In the event of any conflict or inconsistency, the terms of this consent shall prevail.
18.4.3 The Supplier processing and/or transferring (including where applicable cross border transfer) any personal information received from the Customer to an authorised third party strictly in accordance with the terms of the Act, the above-mentioned policy, and any other applicable signed agreement entered into between the Parties.
18.5 The Customer warrants, in respect of any personal information the Customer provides, or otherwise makes available, to the Supplier, that (i) the Customer has obtained all necessary corresponding consents from the data subject concerned, (ii) all such personal information is accurate and reliable, and (iii) the Customer shall notify the Supplier in writing of any changes to such personal information.
18.6 The Customer has the right to revoke the consent given in terms of the above at any time on written notice to the Supplier. Any withdrawal of consent is not retroactive.
SCHEDULE “A” – SOFTWARE TERMS AND CONDITIONS
1.1 “Accounts” means an account enabling the Customer’s Users to access and use the Online Products.
1.2 “Additional Terms” means (where applicable) the additional terms and conditions applicable to the Online Products as identified and contained in each applicable Schedule to this Schedule A, which may be changed, modified and amended, with or without notice in the sole discretion of the Software Vendor. The applicable Microsoft Additional Terms are attached as Schedule B.
1.3 “Consumption Based Product” means cloud-based and/or software products for which Customer is billed based on actual usage of the product;
1.4 “Fees” means the fees payable by the Customer to Supplier for any Online Products that are accessed and/or used and/or consumed by the Customer;
1.6 “Software Products” means any of the Software Vendor’s software and/or cloud-based products subscribed to and/or purchased by Customer from Supplier under this agreement, including but not limited to Subscription Based Products , Consumption Based Products and Perpetual Based Products.
1.7 “Perpetual Based Products” means a type of software license that authorizes the Customer to use the Software Vendor’s software and/or online services and/or cloud-based products indefinitely.
1.8 “Software Vendor” means a vendor company that creates, develops, provides and operates Software Products.
1.9 “Subscription Based Products” means a specific quantity of cloud and/or software offerings, to which Customer commits in advance to purchase for use during a pre-defined Subscription Term and for which Customer pays upfront or on a periodic basis.
1.10 “Subscription Term” means the duration of a Subscription Based Product (e.g. 30 days, 12 months, etc).
1.11 “User(s)” means one or more of the Customer’s officers, employees or personnel appointed as an authorised user of the Software Products and/or one or more of the Customer’s officers, employees or personnel who is granted authorisation to purchase Software Products from Supplier on behalf of the Customer.
2. PRODUCT TERMS
2.1 All access to, licensing of and use of the Software Products are granted to the Customer by the Software Vendor, in accordance with the Product Terms and Additional Terms, on a non-exclusive, non-transferable basis, for the internal business purposes of the Customer. Customer and its Users shall not use the Software Products for resale, distribution, leasing, rental, loaning, sales, sublicensing, the provision of services and/or otherwise;
2.2 All rights granted to the Customer and/or its Users under this Agreement are limited to such rights that are provided by the Software Vendor and are subject to the following limitations:
2.2.1 Customer will have control and access to the Software Products, the use of Software Products is the sole responsibility of the Customer and as such it is the Customer’s sole responsibility to ensure that the Customer and its Users comply with the Product Terms and Additional Terms;
2.2.2 It is Customer’s sole responsibility to ensure that only authorized employees and personnel of the Customer make use of the Software Products. It is the Customer’s sole responsibility to provide its Users with such authorisation as may be required, to use the Software Products on behalf of the Customer;
2.2.3 The Customer may not allow Users to use the Software Products for more than the number of permitted users as prescribed by the Product Terms and Additional Terms of the applicable Online Product;
2.2.4 The Customer may not assign its right to access and/or use the Software Products to third parties without first obtaining CSP’s and/or the Software Vendor ’s prior written consent
2.2.5 Customer is responsible for maintaining the confidentiality of any authentication credentials associated with Customer’s and/or its Users use of the Software Products. Customer shall implement reasonable security measures to ensure that no unauthorized employees, personnel or third parties gain access to the Software Products;
2.2.6 Customer must promptly notify Supplier about any possible misuse of Customer’s Accounts or authentication credentials or any security incident related to the Software Products. Notwithstanding the aforesaid, Customer takes full responsibility and liability for unauthorized access to and/or usage of the Software Products including, without limitation, access and usage of Software Products by unauthorized employees, personnel or third parties, through Customer’s Accounts;
2.2.7 The Customer accepts that should it require the Supplier to install any Online Product(s) and accept any associated Product Terms and/or Acceptable Use Policy terms on behalf of the Customer, then any such installation and acceptance by the Supplier shall be deemed to have been installed and accepted by the Customer notwithstanding that the Supplier may have installed or accepted the same on the Customer’s behalf;
2.3 The Customer will at all times remain solely liable for all activities undertaken on any Account, where the Account was accessed using the Customer’s account credentials, irrespective of whether or not such activities have been authorized by the Customer;
2.4 The Customer will be held liable for all (i) orders placed and/or (ii) any and all consumption and usage charges incurred through the the Customer, whether or not such order, consumption and usage was authorised by the Customer (even where fraudulent).
2.5 The Software Vendor reserves the right to make any changes and/or discontinue any of the Software Products available to Customer at any time. In these circumstances the Supplier will provide the Customer with as much reasonable notice, based to the notice period provided to Supplier by the Software Vendor.
2.6 Customer’s access and/or use of the Software Products does not confer to Customer any right, title, and/or interest (of whatsoever nature and howsoever arising) worldwide, in any intellectual property rights vesting in the Software Products.
2.7 The Supplier and/or Software Vendor expressly reserves all its intellectual property rights, and no licences are granted by implication, estoppel or otherwise to Customer except as expressly set forth in this Agreement.
2.8 The Customer acknowledges that the Additional Terms applicable to Microsoft Software Products are as stated in Schedule B to this Agreement, which Schedule may be updated by the Supplier from time (where necessary) on no less than 30 (thirty) days prior written notice to the Customer.
3. ORDERING, PRICING AND PAYMENT
3.1 The Customer may request the Supplier to provide it with certain Software Products in terms of the Agreement by sending a request for quotation (“RFQ”) to the Supplier.
3.2 The Supplier shall within 2 Business Days of receipt of the RFQ from the Customer (unless this is not possible in which case the Supplier shall notify the Customer of this fact in writing), provide the Customer with a written Quote for the requested software Products, such Quote shall remain valid for the period indicated on the relevant Quote (or if no period is stated it shall be deemed to be valid for a period of 24 hours), but shall at all times be subject to change based on any increase in the applicable rate of exchange unless forward cover has been obtained, at the cost of the Customer.
3.3 If the abovementioned Quote is accepted, the Customer shall, within the validity period reflected on the Quote, indicate its acceptance by placing and Order on the Supplier for the requested Software Products.
3.4 Supplier reserves the right to determine all Fees in respect to the Software Products. Fees are based on pricing provided to the Supplier by the Software Vendor. The Fees are therefore subject to change from time to time based on price changes effected by the Software Vendor.
3.5 Fees are at all times subject to change based on rate of exchange fluctuations.
3.6 Each Party acknowledges and agrees that each Party is liable for its own taxes that each Party is legally obliged to pay and which are incurred or arise in connection with or related to the transactions contemplated under this Agreement, and all such taxes will be the financial responsibility of the Party who is obligated by operation of law to pay such tax.
3.7 To the extent that any amounts payable by the Customer are subject to withholding tax or similar tax in the applicable jurisdiction ("Taxes"), the amount payable shall be grossed up by the Customer when remitting payment such that the amount paid net of Taxes equals the amount invoiced by the Supplier.
3.7.1 Should the Customer require the Taxes be incorporated and reflected on the invoice (whether as a separate line item or otherwise), then the Customer undertakes to advise the Supplier, no less than 30 days prior to invoice date, of the % value of the applicable Taxes to be withheld. The Supplier shall then increase the invoice value such that the net amount payable by the Customer equals the amount that would have been payable had no Taxes been applicable.
3.8 In respect to Subscription Based Products: Customer will make payment of all Subscription Based Products in advance by either paying the applicable Fees upfront or on a periodic basis. Supplier will provide Customer with a tax invoice at the time Customer subscribes for any Subscription Based Products, or when Customer renews its subscription for such Subscription Based Products, and Customer will make payment of such invoice within the agreed payment terms.
3.9 In respect to Consumption Based Products: Supplier will provide Customer with a valid tax invoice, on a monthly basis, based on the Customer’s access and/or use of any Consumption Based Products in the immediately preceding month. Customer will make payment of such invoices within the agreed payment terms.
3.10 In respect to Perpetual Based Products: Customer will make payment of all Perpetual Based Products in advance by paying the applicable Fees upfront. Supplier will provide Customer with a tax invoice at the time Customer purchases any Perpetual Based Products, or when Customer purchases any updates and/or upgrades for any Perpetual Based Products, and Customer will make payment of such invoice within the agreed payment terms.
3.11 In addition to any other legal rights or remedies Supplier may have in this Agreement or in law, should the Customer fail to make payment of the Supplier’s invoices on the due date and this is not remedied within 7 (seven) days of written notice, Supplier shall be entitled to terminate this Agreement and/or suspend Customer’s access and/or usage of the Software Products with immediate effect, and the Customer accepts that the Supplier shall have no liability to the Customer or any third party for any loss, damage or other harm (of whatsoever nature, including loss of data or business interruptions) that arise as a result of such termination and/or suspension, and the Customer agrees to indemnify and hold the Supplier harmless against any claims in this regard.
3.12 All Fees and payments relating to Customer’s access and/or usage of the Software Products are final, non-cancellable and non-refundable.
3.13 The applicable Software Vendor may have its own policies regarding refunds and/or returns which are available to Customer, which are set forth in the applicable Software Vendor’s Product Terms.
3.14 If Customer has paid for access to Software Products that are later disabled, non-functioning, modified, or otherwise interfered with before the end of the period for which Customer purchased access, Customer may rely on the applicable Software Vendor’s Product Terms for any remedies available to Customer.
4. TERM AND CONSEQUENCES OF TERMINATION
4.1 Termination of the Agreement will only terminate Customer’s right to place new orders for additional Software Products and/or to renew the Subscription Term for Subscription Based Products under this Agreement.
4.2 The Customer will not be entitled to terminate its subscription for Subscription Based Products prior to expiration of the Subscription Term.
4.3 The Customer will be liable for payment of all outstanding Fees as at the termination date of the Agreement and for the remaining term of any Subscription Based Product.
4.4 Consumption Based online products - Should either Party terminate the Agreement in accordance with its terms, Consumption Based Products billed periodically based on usage will terminate immediately. The Customer will be liable for payment of all Fees for unpaid usage as of the effective date of termination;
4.5 Should either Party terminate the Agreement in accordance with its terms, such termination will not affect the Customer`s access to Perpetual Software Products paid for;
4.5.1 Where the Customer purchases any Perpetual Based Products, the Customer acknowledges and accepts that upgrades, updates, maintenance and support are not included.
4.5.2 Upgrades, updates, maintenance and support will need to be purchased separately by the Customer
4.6 Where prescribed by the applicable Software Vendor, the Customer’s subscription for Subscription Based Products will automatically renew at the end of the Subscription Term for a period equal to the previous subscription term, unless Customer provides Supplier with no less than 60 days prior written notice of its intent not to renew its subscription for the Subscription Based Products.
5. WARRANTY DISCLAIMER
5.1 The Software Products purchased under this Agreement are made available by Software Vendors that are independent of the Supplier and, as such, Customer agrees that Supplier is not responsible for such Software Products and the Customer expressly agrees that the access and/or use of the Software Products is at its sole risk. Supplier will have no direct or indirect responsibility for or in relation to the performance or delivery, in any manner whatsoever, of the Software Products. Customer’s purchase of, access to, performance of and use of the Software Products are regulated directly between the Customer and the applicable Software Vendor and is subject to that Software Vendor’s Product Terms and Additional Terms.
5.2 To the fullest extent permissible pursuant to Applicable Laws, Supplier and its affiliates disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. Supplier and its affiliates do not warrant that the Software Products, data, user submissions, features, functions, or any other information offered on or through the Software Products or any reference materials will be uninterrupted, accurate, useful, or free of errors, viruses or other harmful components and do not warrant that any of the foregoing, if encountered, will be corrected.
SCHEDULE “B” – MICROSOFT SPECIFIC TERMS
SPECIFIC REQUIREMENTS FOR MICROSOFT LICENSE BASED SERVICES
1.1. The Customer must at the time of purchase select (which selection must be based on the Supplier’s quotation):
1.1.1. the relevant SKU for the applicable Microsoft Subscription Based Products that are License Based Services (“Licenses”);
1.1.2. the quantity of Licenses required; and
1.1.3. the committed Subscription Term for such Licenses.
1.2. Unless otherwise permitted by Microsoft, the Customer may not cancel, downgrade or decrease any Licenses during the Subscription Term or any renewal Subscription Term, and shall not be entitled to change their Microsoft partner during the Subscription Term or any renewal Subscription Term.
1.3. Should the Customer be provided with trial Licenses, then Customer is obligated to notify the Supplier of intention to cancel the trial Licenses prior to expiration of the trial period, failing which the applicable trial Licenses will automatically be converted into paid Licenses which will be for the Subscription Term indicated in the initial trial License subscription.
1.4. The Subscription Term for Licenses will automatically renew for further periods equal to the preceding Subscription Term unless prior to expiration of the Subscription Term the Customer explicitly elects otherwise in accordance with the standard operating procedure applicable at the time of renewal.
1.5. The Customer will become liable for the new Subscription Term on renewal and each renewal will be subject to the pricing and other terms applicable at the date of the renewal.
1.6. If the Customer does not explicitly communicate their intention not to renew then the Customer accepts liability for the cost of that renewal and will be bound for the full Subscription Term of such renewal.
1.7. The Customer’s access to and use of the Licenses will at all times be subject to the Microsoft rules relating to License-Based Services which can be found at https://docs.microsoft.com/en-us/partner-center/new-commerce-license-based and https://docs.microsoft.com/, as well as any applicable Microsoft Customer Agreement as may be updated and amended from time to time, a recent copy of which is available at https://www.microsoft.com/licensing/docs/customeragreement, and which is incorporated herein by reference.
1.8. The Customer will be liable for payment for the full Subscription Term of any Licenses (both for the initial Subscription Term and any renewal), which shall be invoiced and paid for in accordance with the payment terms and at the payment frequency agreed to between the Parties.
1.9. Microsoft defines the rules in terms of which a License subscription’s start and end date are calculated.
1.10. Where the Customer has Licenses across more than one Microsoft tenant, the Customer acknowledges that it is not permitted to reallocate Licenses across different Microsoft tenant’s and every License is strictly allocated to a specified Microsoft tenant.
1.11. Where applicable, the Customer authorizes the Supplier and/or its indirect provider to have delegated administration rights on its tenant.
1.12. In circumstances where the Customer is the administrator of its License portal, the Customer will be required to notify the Supplier of any Licenses it purchases on the portal, and shall be liable for any purchases it makes on the portal.
2. SPECIFIC REQUIREMENTS FOR MICROSOFT AZURE
2.1. The Parties record that billing for the use of Microsoft Azure is based on the quantity of consumed Software Products and is subject the terms and conditions prescribed by Microsoft;
2.2. The Customer acknowledges that due to the nature of Microsoft Azure, the Fees payable by the Customer cannot be established in advance as they are based on the quantity of Azure consumed and utilised by the Customer in the preceding month, and as such can only be established and confirmed in arrears.
2.3. The Customer shall be solely responsible for all access control (i.e. authorizing any necessary access), setting and managing its Azure spend budget and all other Azure requirements, guidance for which can be obtained by the Customer from https://learn.microsoft.com/en-us/azure/?product=popular
2.4. Terms and expressions used and defined in Schedule A shall bear the same meaning in this Schedule B.
“Azure Consumption” means the usage of products and/or services sourced and/or consumed through Microsoft Azure and as measured and determined by Microsoft;
“Azure Overage” means Azure Consumption usage charges that exceed any credit balance in place (if any);
“Fees” means the amounts payable by the Customer to the Supplier for all Azure Consumption and Azure Overage incurred by the Customer in the applicable billing cycle;
2.6. The Supplier shall invoice the Customer for the Fees incurred by the Customer, and the Customer shall be obliged, upon request, to provide any additional purchase orders as required by the Supplier;
2.7. The Parties agree that the following process shall be followed in respect to the Supplier’s billing of Azure Overage:
2.7.1. Where the Customer’s Azure Consumption exceeds its available credit balance in place, then it accepts that it shall be liable for all Fees incurred as a result of the Azure Overage, whether approved by the Customer or not;
2.7.2. the Supplier shall provide the Customer, monthly or quarterly (as applicable) in arrears, with an Azure Consumption invoice recording the Customer’s Azure Consumption and Azure Overage;
18.104.22.168. Any consumption report provided by the Supplier to the Customer will be based on the corresponding consumption report received from Microsoft, and shall be deemed prima facie proof of such consumption. Should the Customer dispute the consumption report it shall be required to pay such amounts pending feedback from Microsoft and credit’s will only be provided if correspondingly credited by Microsoft.
2.7.3. the Customer shall make payment to the Supplier within the agreed payment terms from receipt of the Supplier’s invoice, free of deduction or set-off, and together with any applicable Value Added Tax (or similar tax, where applicable);
2.8. Any payments due and owing to the Supplier must be paid on or before the due date for payment thereof, notwithstanding any corresponding payments the Customer is entitled to from its customer and/or any third party.
2.9. If the Customer fails to make full payment to the Supplier as outlined in clause 2.7 above, the Customer shall pay interest to the Supplier on the outstanding amount at the prevailing South African prime interest rate, plus 3% (three percent) per annum calculated from the date on which payment falls due until the date on which payment is made.
2.10. In addition to any other rights or remedies available to the Supplier, should the Customer fail to make payment to the Supplier as outlined in clause 2.7.3 above, the Supplier reserves the right to pursue all remedies available to it, including but not limited to, suspending and/or terminating the Customer’s access to Microsoft Azure. The Customer shall have no claim, and the Supplier shall have no liability, for any loss or damages arising as a result of the Supplier’s suspension and/or termination of the Customer’s access to Azure, including but not limited to loss of data or business interruption. The Customer undertakes to indemnify and hold the Supplier harmless against any claims, losses or damages that may arise as a result of the Supplier’s suspension and/or termination as provided for in this clause.
3.MINIMUM SECURITY STANDARDS
3.1. The Customer shall ensure that it at all times has adequate and suitable security, systems, processes and measures in place to secure its use of the Software Products.
3.2. The Customer shall ensure that it has Multi-Factor Authentication (MFA) and other recommended security controls, enabled at all times, and accepts that it shall solely bare any risks, and associated liability, that may arise as a result of its failure to have MFA enabled across all Users.
3.3. The recommended security controls include but are not limited to, those controls outlined by Microsoft and available at https://learn.microsoft.com/en-us, https://learn.microsoft.com/en-us/security/compass/compass, and https://learn.microsoft.com/en-us/azure/security/fundamentals/best-practices-and-patterns
FIRST TECHNOLOGY INVESTMENTS (PTY) LTD
DIRECTORS: A. Sharp, V. Pillay, N. Rauff
LEGAL – CON – General Terms and Conditions - 01