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The Terms and Conditions set out in this document constitute the entire and any agreement between Alien Software CC (hereafter referred to as "the Company") and its Clients (hereafter referred to as "the Client") with respect to the purchase of Alien BWR Software, third-party products or software products, other Alien software or third-party maintenance services and/or installation and/or packaged consulting services identified in the Company quote or through the agreed general course of business between the Company and the Client.
1. CLIENT ORDER
1.1 The Client accepts the Company Quote by indication of signature in the space provided on the quote and returning such to the Company.
1.2 This response to the Quote constitutes the Clients' Order to Purchase the Alien BWR Software and or any other goods and services as detailed in the quote (each accepted Quote constitutes an Order to Purchase).
1.3 The Client shall be deemed to unconditionally accept these terms and conditions detailed herein by issuing such an Order to Purchase and any other ensuing goods and services provided by agreement (by an Order to Purchase, tacit or otherwise) between the Company and the Client.
1.4 No terms and conditions specified in any third party products or services or pre-printed on any other Order to Purchase or other form of acceptance shall add to or modify these Terms and Conditions.
2. PRICES, PAYMENT AND TAXES
2.1 All Quotes are valid for fourteen (14) days unless otherwise specified.
2.2 All invoiced prices are those specified in the Quote as accepted by the Client.
2.3 Prices include applicable Value Added Tax (VAT) as indicated and, unless expressly identified and itemised, do not include freight, handling or insurance.
2.4 Products, maintenance or services purchased for delivery outside of the Republic of South Africa may be subject to the required and non-recoverable VAT as required by the South African Revenue Services.
2.5 The Client hereby agrees to reimburse the Company for the total amount of such VAT incurred which will be invoiced as such.
2.6 Payment for goods or services as stated herein shall be made in the South African Currency, without deduction or set-off unless otherwise by written agreement by both parties.
2.7 These payments shall be made in full, in the form of cash, Credit Card, Bank Guaranteed Cheque or Electronic Fund Transfer (EFT) against an official Company invoice.
2.8 Other goods and services provided by agreement to the Client by the Company are similarly invoiced and the provisions stated herein in terms of VAT and freight, handling or insurance applies.
3.PAYMENT AND INVOICING TERMS
3.1 Upon accepting the Company Quote as detailed herein, the Client will receive an invoice from the Company.3.2 Before the Company provide any goods or services that are stated in a quote, the Client will make a full payment on receipt of said invoice to the Company.3.3 Thereafter, on completion of the installation of Alien BWR Software, the monthly subscription charges will be invoiced to the Client. This monthly invoice is also payable on receipt of the invoice.
3.4 The Company reserves the right to charge an interest fee on late payments and/or arrears of one and one half percent (1.5%) of the outstanding balance per month for each month, or partial month.
3.5 Any undisputed invoice remains unpaid beyond its due date.
3.6 The Client will pay the collection fees, which includes
3.6.1 bank fees on returned or unpaid bank deposits to the Company
3.6.2 as well as any interest charges at the Company's Banker's prevailing prime rate incurred by the Company to effect settlement of any undisputed past due invoice.
3.7 The Client remains primarily responsible and liable for complete and timely payment of all invoices issued hereunder.
4.1 The Client may purchase the Company products and services as identified in a Quote.
4.2 Future customised or project-based services also require a quote between the parties and are also governed by these terms and conditions.
4.3 All prices for services are based on work being performed during normal business hours (08.00 to 17.00, Monday through Friday). These prices will be adjusted for work done outside of these times.
4.4 Security arrangements and access for the Company at the Customer's location is the responsibility of the Client.
5.1 Delivery Time shall not be of the essence in this agreement.
5.2 Any time or date specified for delivery by the Company or the Client, in respect of any sale or service, shall be an approximation and guide only.
5.3 Should the Company be unable to effect delivery of any part of the goods or service on the date or time stipulated by it or the Client, the Client shall be obliged to take delivery as and when the Company can reasonably effect such delivery.
5.4 While the Company endeavours to effect delivery on any date specified by it or agreed upon by it, it does not give any warranties of whatsoever nature or kind and it shall not be held responsible for any damages of whatsoever nature, or loss of profit, or any consequential or indirect damages which the Client may suffer as a result of such later delivery
5.5 The Company is entitled to charge storage costs where the Client requests the Company to withhold or postpone delivery, and the Company agrees thereto, and the Client undertakes to pay any and all storage costs related to goods not taken, at the prevailing storage rates charges by the Company.
5.6 The risk in and to the goods purchased shall pass to the Client upon delivery. Such delivery will be deemed to have been effected upon tender of the goods for acceptance by the Client within normal business hours, at the Client's place of business or such other place nominated by the Client, or the Company's place of business, if the Client elects to collect the goods.
Any maintenance resold by the Company hereunder, is subject to the terms and conditions for such services identified by the third party provider. The Company is not a party to any such third party terms and conditions.
7. OWNERSHIP & RISK
7.1 Ownership of the goods provided by the Company to the Client shall, at all times, remain vested in the Company, until the Client has made full payment of the purchase price.
7.2 No latitude or extension of time given to the Client shall in any way vitiate or novate the Company's rights hereunder.
7.3 In the event of any default on the part of the Client, the Company shall, without prejudice to any other rights it may have, and without notice, be entitled, on demand, to obtain return of the goods, in so far as payment for the goods has not been made in full.
7.4 The Client therefore consents that the Company shall be entitled to take possession of the goods without prejudice to any further rights vested in the Company, and is hereby irrevocably authorised to enter upon the Client's premises to take possession of such goods without a Court order.
7.5 In the event of the Client obstructing the Company in the process of removing its goods from the Client necessitating the obtaining of a Court order, the Company shall be entitled to obtain an award of costs against the Client on a punitive scale.
7.6 Furthermore, the Client shall have no claim against the Company for damages caused due to loss of profits or otherwise occasioned by the removal of goods from the Client's premises as aforesaid notwithstanding that such removal was effected without Court order.
7.7 Notwithstanding that all risk in and to all goods sold by the Company to the Client shall pass on delivery, ownership in all goods sold and delivered shall remain vested in the Company until the full purchase price has been paid and in the event of a breach of these Terms and Conditions by the Client, or if the Client is sequestrated or placed under liquidation or judicial management or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy a judgment granted against it within 7 days of the date of judgment or changes the structure of its ownership, the Company shall be entitled to take possession of the goods without prejudice to any further rights vested in the Company, and is hereby irrevocably authorised to enter upon the Client's premise s to take possession of such goods without Court order.
7.8 It shall not be necessary for the Company to prove either to the Client or the Client's liquidator or trustee which goods owned by or formerly in the possession of the Company has actually been paid for and which have not been paid for.
7.9 The Company shall be entitled to identify its goods merely by way of packaging and other distinguishing marks. The Company shall not be obliged to identify its goods by way of serial numbers or any other form of intricate identification.
8. SECURITY INTEREST
The Client hereby grants and the Company retains a security interest in all Products purchased hereunder, and such security interest is released when payment in full is received by the Company.
9.1 The Client reserves the right to cancel or suspend (for period agreed by both parties) the use of the Alien BWR Software and/or any other services provided by the Company.
9.2 However, written notice of this intention to cancel or suspend must be given to the Company thirty (30) days before the intended due date of cancellation.
9.3 The Client remains liable for the full monthly fees until the agreed due date of the cancellation or suspension as well as any other outstanding amounts owed to the Company.
9.4 In the event of the Client having outstanding unpaid amounts owing to the Company, the cancellation or suspension will only be effected thirty (30) days after these outstanding amounts have been paid in full. Therefore, the Client remains liable for the ensuing monthly subscription fees and/or any other fees owed to the Company until the Client's account has been settled in full.
9.5 Should the Client request summarily cancellation or suspension, the Client remains liable for the monthly fees for the ensuing thirty (30) days as invoiced as well as any outstanding amounts as invoiced.
9.6 Should the Client have outstanding unpaid amounts owing to the Company and request summarily cancellation, this will only be effected thirty (30) days after these outstanding amounts have been paid in full. Therefore, the Client remains liable for the ensuing monthly subscription fees and/or any other fees owed to the Company until the Client's account has been settled in full.
9.7 The Client will also pay for all services provided through the date of cancellation.
9.8 The Company reserves the right to suspend/ disconnect any services provided to the Client and/or repossess any goods/ equipment provided to the Client for any unpaid amounts relating to these goods/equipment or services. Notwithstanding this, the Client will remain liable for full settlement of the outstanding account as well as any expenses incurred by the Company in the execution of this suspension/ disconnection and/or repossession.
9.9 The Company is not obliged to accept returned goods where the Client has made an error in its order, and the Client remains fully liable for the full price of the goods so ordered.
10.1 All Products and Maintenance purchased hereunder are subject to the warranties provided by the manufacturer.
10.2 The Company hereby transfers to the Client such transferable warranties the Company receives from the applicable manufacturer as legally permissible.
10.3 The Company warrants that its services will be performed by qualified individuals in a professional and workmanlike manner conforming to generally accepted industry standards and practices.
10.4 Services are supported against defects in workmanship for thirty (30) days after delivery.
10.5 The Company makes no warranty as to the results of any services provided.
10.6 Except as set forth in this paragraph, all products and maintenance are provided "as is" and the Company disclaims any and all warranties and remedies, whether express or implied, including but not limited to implied warranties of merchantability, suitability and fitness for a particular purpose or use, title and non-infringement.
11. LIMITATION OF LIABILITY
11.1 Notwithstanding anything else herein, all liability of the Company under this agreement or otherwise shall be limited to money paid to the Company under this agreement during the six (6) month period preceding the event or circumstances giving rise to such liability.
11.2 In the case of damages relating to any allegedly defective product shall, under any legal or equitable theory, be further limited to the purchase price paid by the Client for such product.
11.3 In no event shall the Company be liable for any incidental or consequential damages, lost profits, or lost data, or any other indirect damages even if the Company has been informed of the possibility thereof.
11.4 While the Company takes every professional care to understand the needs of the Client, the Company does not give any warranty against defects in the goods supplied, be they patent or latent.
11.5 The Company does not give any warranties or guarantees of any other nature or make any representations whatsoever in respect of the goods, or of its fitness for any particular purpose, whether or not that particular purpose is, or could be, deemed to be known to the Company, other than any warranty or guarantee that may have been expressly given in writing.
11.6 The Company shall therefore be deemed to be unaware of the particular purpose for which the goods or any product is required.
11.7 The onus shall therefore be on the Client to satisfy itself that the goods supplied are for the purpose for which the goods are to be used, there being no obligation on the Company to guarantee such suitability.
12.1 The Alien BWR Software product is owned by the Company and is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
12.2 Therefore its structure, organisation and code are the valuable trade secrets and assets of the Company.
12.3 Any unauthorised use of this product may violate such laws. The Alien BWR Software product is licensed, not sold.
12.4 The Alien BWR Software is provided to the Client for an individual/ singular point of sale (till/ cash register) use only and it is intended as a retail business management tool.
12.5 The Client is not authorised the republication, distribution, assignment, sublicense, sale, or preparation of derivative works of the Alien BWR Software whatsoever.
12.6 The Client may not copy, modify, adapt, decompile, reverse engineer, disassemble, translate or otherwise attempt to discover the source code of the Alien BWR Software.
12.7 The Client may not reproduce in any form or by any means any portion of the software, documents or information contained in the Alien BWR Software whatsoever.
12.8 The Client may not sell or transfer the Software or any part of it to any it to any of its business units or any part of the Client's business(ess) or to any third party or another or anywhere, nor assign or transfer any of the Client's rights or obligations under these terms and conditions.
12.9 Except when expressly provided, the Company and its suppliers do not grant any express or implied right to the Client under any patents, copyrights, trademarks, or trade secret information with respect to the products supplied to the Client.
12.10 Any third party software delivered by the Company is subject to the license terms provided with it. All software license terms are established directly between the Client and the owner or licensor of the software.
12.11 The Company is not a party to any such software license and makes no warranties or representations related to the ownership, use or operation of the software.
13.1 No agreement, warranty, condition, representation, promise, statement or undertaking, whether made before or after a sale, shall be binding on the Company unless contained herein or confirmed officially in writing under the Company's signature.
13.2 No variation, amendment or alteration of these Terms and Conditions shall be of any force or effect unless reduced to writing and signed by a duly authorised representative of the Company and the Client.
13.3 Wherever, in these Terms and Conditions, provision is made for the amendment or variation thereof between the Client and the Company, in writing, the onus shall be on the Client to establish that the representative of the Company, in entering into such variation or amendment to the terms hereof, was authorised to do so.
13.4 The Client agrees that a signature of its employees or any person purporting to represent it on the official delivery note of the Company be sufficient proof of delivery of the goods from time to time.
13.5 The Company reserves the right in its sole discretion to vary or amend these Terms and Conditions from time to time and any such amended or varied terms and conditions shall be binding on the Client from the time that the Client is notified thereof. Any subsequent dealings shall be on the Company's amended Terms and Conditions.
14. GOVERNING LAW
14.1 All transactions made under these Terms and Conditions will be governed by the applicable laws for the Republic of South Africa.
14.2 Any dispute regarding these Terms and Conditions shall be subject to the exclusive jurisdiction of the applicable court of the Republic of South Africa.
Should any provision of these Terms and Conditions be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
16. FORCE MAJEURE
Should an agreement becomes wholly or partially impossible to perform due to causes beyond the control of the Company, such causes to include, but not be limited to; war, civil insurrection, vis major, government action and industrial disputes, the Company shall be permitted to rescind an agreement at its discretion. If deliveries of goods or services shall be delayed as a result of such causes, the Company shall not be construed as being in breach of the agreement.
17. DOMICILIUM CITANDI ET EXECUTANDI
The Company hereby elects as its domicilium citandi et executandi, at which it will accept service of any process or notice: