NATANT COMPUTERS T/A SOIT – TERMS AND CONDITIONS
NATANT COMPUTERS T/A SOIT, (Hereinafter referred to as “SOIT” or the “Company”) provide virtual and on-site computer maintenance, support and consulting services. These General Terms and Conditions (along with any directly associated written specification or quotation of SOIT exclusively shall govern the provision of Goods and Services provided by SOIT (including without limitation, goods, products, pricing, project management, consulting, and all other services collectively “Services” or “Goods” or “Goods and Services”) furnished hereunder.
By confirming and/or accepting and/or signing a SOIT Booking, Quote, Service Level Agreement and/or Invoice, the Client accepts these Terms and Conditions. The Services provided to the Client, are subject to the following.
No addition or modification to these Terms and Conditions shall be binding on SOIT unless agreed to in writing signed by an authorised representative of SOIT at SOIT’s head office.
These Terms and Conditions shall take precedence over any terms, conditions or stipulations contained in any of the Client’s documentation which may be in conflict with these or other terms and conditions set forth in SOITs written specification, quotation or other acknowledgement.
Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by SOIT shall be subject to correction without any liability on the part of SOIT.
Should the Client in any way purport to attach any conditions which vary, amend or are in conflict with the conditions set forth herein, the notwithstanding anything in the contrary stipulated by the Client, the conditions set forth herein shall prevail and be of full force and effect unless specifically varied by SOIT in writing with specific reference to the Client’s contrary documentation.
THIRD PARTY NETWORK CONNECTIONS
If the Client intends to connect their network to other wide area networks (i.e. networks that are not SOIT managed networks) they must first obtain permission from SOIT before committing to the other network connections and the client indemnifies SOIT from any break, hack, leaking of information or infection related to the client’s data or documentation
GOODS PROVIDED BY SOIT
In order for SOIT to perform the Services, SOIT may make recommendations to the Client, or the Client may request that a product be provided by SOIT.
All expressed or implied warranties, descriptions, representatives and conditions as to the quality or compatibility in respect of the Services or any item of software, hardware or peripheral provided by SOIT are expressly excluded.
SOIT has no liability as to the suitability of the performance of The Services or product manufactured, sold or supplied by a third party, whether that product has been recommended to the Client by SOIT.
Any hardware, software or equipment provided to the Client by SOIT shall remain the property and can be removed at SOIT’s immediate discretion unless full payment is received.
It is the responsibility of the Client to determine that the products or services ordered by it are suitable for the purposes of intended use. SOIT gives no warranty, express or implied, concerning the suitability of the products supplied for any purpose whatsoever.
SOIT reserves the right, at its sole discretion, to provide alternative products at the prevailing prices to those ordered by the Client, should those products have been superseded, replaced or otherwise become unavailable.
Once installed and paid for all hardware on the Client’s premises belong to the Client and at no stage whatsoever does SOIT take custody, possession or risk of the Client’s hardware. The Client confirms that they shall not hold SOIT responsible or liable for any damage and/or loss whatsoever.
INSTALLATION AND MAINTENANCE
Installation of any product will be effected by SOIT’s approved technician or team of technicians. The technician/s will liaise with the Client’s appointed representative. The Client will provide the access necessary to install and maintain all equipment required to provide an operational network or related link. SOIT will maintain all IT equipment. The Client undertakes to provide free and full access, to all equipment, to SOIT‘s approved technician should the need arise. The Client will also provide free and full remote access to SOIT when requested to do so by SOIT.
The Client undertakes to use SOIT‘s equipment and related software only in strict accordance with instructions from SOIT and that SOIT is not liable for any repairs or damage caused other than by the normal and instructed use of SOIT equipment.
SOIT shall not be required to work to tolerances closer than those applicable to the materials obtained by it in the ordinary course of trade, or supplied to it by the Client. SOIT shall not be held liable for any variations in the standard, quality and performance of such materials.
SOIT shall not be held responsible for imperfections in the work due to defects in or the unsuitability of material or equipment not supplied by SOIT. Extra costs incurred through the use of defective materials or equipment supplied shall be for the Client’s account.
The Client agrees to pay all costs resulting from any acts, omissions or requests of the Client including disbursements, suspension of work, modifications of requirements, failure or delay in giving particular requisite to enable work to proceed on schedule, or requirements that work be completed earlier than previously agreed. Client’s property and property supplied to SOIT will be retained at the Clients risk.
SOIT shall not be liable for any damage arising from any misuse, abuse or neglect of products or services under any circumstances whatsoever.
Delivery and performance times quoted are estimates and are not binding on SOIT.
SOIT shall not be liable for any defects resulting from it being required to expedite delivery ahead of the time needed for the proper production of the order. Any order is subject to cancellation by SOIT due to Acts of God, or from any cause beyond the control of SOIT, including ( without restricting this clause to these instances ): inability to secure labour, power, materials or supplies, or by reason of an Act of God, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
The risk of damage to, or destruction or theft of its products shall pass to the Client on delivery of any order placed in terms of this Agreement and the Client undertakes to comprehensively insure the products until paid for in full.
The Client will be responsible for insuring all the equipment on the Client’s site against any form of loss or damage from all risks. This insurance should be of a value equal to the full replacement value of the equipment.
APPOINTMENTS, RATES AND WORKING HOURS
SOIT will attend the Client’s premises at the prearranged time. The Client will pay for all Services provided, at the rates indicated in the Quotation and/or Invoice provided by SOIT.
SOIT normal working hours are Monday through Friday, 08:00 to 17:00. In some cases, subject to previous arrangements being made, the Services will be provided out of the normal working hours. These will include Saturday and or Sunday and a latest working time of 21:00. An overtime fee will be charged for these additional working hours. Weeknights and Saturdays will be charged at one and a half times the normal hourly rate, excluding travel reimbursements. Sundays will be charged at double the normal hourly rate, excluding travel reimbursements.
QUOTATIONS, DELIVERY NOTES AND PAYMENT
SOIT shall provide the Goods and Services in accordance with any written quotation of SOIT which is accepted by the Client or written order of the Client which is accepted by SOIT, subject in either case to these Terms and Conditions, which shall govern the Agreement to the exclusion of any other terms and conditions.
All quotations are subject to the availability of input Goods or Services and subject to correction of good faith errors by SOIT, and the prices quoted are subject to any increase in the cost price, including currency fluctuations, to SOIT before acceptance of the order.
All pricing quoted requires additional payment of 14% Value Added Tax (VAT) for VAT purposes.
In the event of the Client disputing the amount of the cost increase as stated above, the said amount may be certified by an independent auditor and such certificate shall be final and binding on the Client.
The Client agrees to establish, immediately upon delivery, that the Products and Services appearing on SOIT’s delivery note, Tax Invoice or other documentation, correctly represents the Products, or Services, and prices agreed to and are free of defects.
Where Products or Services are delivered prior to the issue of a Tax Invoice, the Client agrees to immediately upon receipt of the Tax Invoice establish that it correctly represents the delivered Products or services and prices agreed to.
The Client hereby confirms that the Goods or Services detailed on the Tax Invoice issued duly represents the Goods or Services ordered by the Client at the prices agreed to by the Client and, where delivery / performance has already taken place that the Goods or Services were inspected and that the Client is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.
Any delivery note, invoice or waybill (copy or original) signed by the Client or a third party engaged to transport the products, and held by SOIT shall be conclusive proof that delivery was made to the Client.
If applicable the Client agrees to pay the subscription fee, which may include (without being limited to) the monthly access fee, usage fees, fees for closed user groups and fees for other Services which the Client may subscribe to from time to time. Unless specifically agree otherwise by SOIT, the subscription fee will be payable monthly in advance.
SOIT will invoice the Client for the membership fee on a monthly basis, and the subscription fee and all other amounts payable in terms hereof shall be paid free of exchange and without deduction or set-off by way of a direct debit order (drawn against a current banking account nominated by the Client) in favour of SOIT or in such other manner as SOIT may from time to time determine. The Client agrees that by furnishing its bank details, it authorises SOIT to deduct all amounts payable in terms of this Agreement from the account specified. Should SOIT require the Client agrees to sign all such forms and do all such things as may be necessary to give effect hereto.
SOIT shall be entitled to increase the monthly fees detailed in the subscription form completed by the Client on 30 (thirty) days prior written notice thereof to the Client provided that ;
– SOIT shall not be entitled to increase the monthly fees during the first 12 (twelve) month period of this Agreement.
– SOIT shall not increase the fees more than once in any 12 (twelve) month period of this Agreement.
Should the Client fail to pay any amount on the due date for payment, then, such amount shall bear interest at the rate of 2% (two percentum) above the prime overdraft rate of SOIT’s bankers from time to time, calculated from the due date until the date of payment (both dates inclusive) and will be capitalised monthly, and SOIT shall be entitled to take all such further steps as may be necessary to recover the outstanding amount from the Client, in which event the Client agrees to pay all costs associated with such recovery on an attorney and own Client basis.
Further should a Client fail to pay SOIT shall be entitled to, without notice, suspend the Client’s access to the Service until such time as the outstanding amount has been paid in full; and/or SOIT shall be entitled to terminate this Agreement with immediate effect.
The Client may not withhold payment of any amount due to SOIT in terms of this Agreement by reason of any alleged breach of this agreement by SOIT, nor will the Client be entitled to any discount, refund or other credit under any circumstances.
All Products supplied by SOIT remain the property of SOIT until such Products have been fully paid for whether such products are attached to other property or not.
The Client agrees that the amount contained in a Tax Invoice issued by SOIT shall be due unconditionally as follows (a) cash on order, or (b) if the Client is a Credit Approved Client, then within the granted credit period as specified on the Credit Application, or not later than the end of the month in which a Tax Invoice has been issued by SOIT.
The risk of payment by cheque through the post or by electronic funds transfer rests with the Client.
The Client has no right to withhold payment for any reason whatsoever and agrees that any extension of time given for payment shall be valid only if reduced to writing and signed by the Client and a duly authorized representative of SOIT.
The Client is not entitled to set off any amounts due to the Client by SOIT against it’s indebtedness to SOIT. All discounts shall be forfeited if payment in full is not made on the due date. The Client hereby gives his/ her consent for a credit check. Outstanding accounts are subject to default listing on a national credit bureau database. On payment of the outstanding debt the default listing will be adjusted to read “Paid Default” until legislation demands complete removal. SOIT reserves the right to provide a national credit bureau with updated personal information. The Client also consents that SOIT may use a national credit bureau database for tracing, should the Client abscond.
In order to ensure the security and reliable operation of the Service to all SOIT Clients, SOIT hereby reserves the right to take whatever action SOIT finds necessary to preserve the security and reliability of its network. The Client may not utilise the Service in any manner which may compromise the security of SOIT’s network or tamper with the Service or the network in any manner whatsoever.
SOIT reserves the right to put the names and other information received by and relating to its Clients into a computerised directory for internal use only. SOIT is committed to protecting its client’s privacy and ensuring that their personal information is used appropriately, transparently, securely and in accordance with applicable laws.
SOIT will maintain the confidentiality of the Client’s files and or data. SOIT further undertakes not to provide any Client information to any third party, save in the event that it is lawfully required to do so.
INDEMNITY AND LIABILITIES
The Client acknowledges that it does not rely on any representations made by SOIT in regard to its Products and Services, or qualities thereof, leading up to this Agreement other than those contained in this Agreement. All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished by SOIT in respect of its Products or Services, whether orally or in writing will not form part of this Agreement in any way unless agreed to in writing by SOIT. The Client hereby unconditionally and irrevocably indemnifies SOIT and agrees to hold SOIT free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by SOIT or instituted against SOIT as a direct or indirect result of the Client’s use of the Service; the Client’s failure to comply with any provision of this Agreement or any other requirements which SOIT may impose from time to time; and any unavailability of, or interruption in the Service. SOIT accepts no liability in respect of any problem(s) it is not able to remedy due to any matter beyond its control. Including, but not limited to, the age, specification or condition of the Client’s hardware and or software. As well as a Client’s failure to provide appropriate software disks, drivers, product serial numbers or any fault with the Client’s ISP. The Client further confirms that there is no legal restriction or impediment to SOIT providing Services to the Client. SOIT shall, under no circumstances, be liable, either in contract, or otherwise for any damage or injury caused to the Client, its employees, agents or any third parties. Including, without limitation, any direct and or indirect or consequential damages, expenses, costs, profits, lost savings, earnings, interruption to business activity, lost or corrupted data or other liability arising out of or related to the Services provided by SOIT or out of installation, de-installation, use of, or inability to use the Client’s computer equipment, hardware, software or peripherals. The Client will, upon demand, indemnify SOIT in respect to loss, damage or injury arising from the provision of the Services. SOIT has no liability to the Client for data loss or damage incurred in any circumstances whatsoever. The Client agrees that neither SOIT nor any of its employees will be liable for any negligent or innocent misrepresentations made to the Client.
USER ETIQUETTE AND ABUSIVE BEHAVIOUR
The Client acknowledges that SOIT is unable to exercise control over the content of the information passing through SOIT connection and/or SOIT network, and SOIT hereby excludes all liability of any kind for the transmission or reception of infringing information of whatever nature.
SOIT network may be used by the Client to link into other networks (national or International) and the Client agrees to conform to the acceptable protocols and policies of these networks. The Client, its Directors, Employees, Agents or Contractors, hereby agree to adhere to generally acceptable Internet and e-mail etiquette, specifically but not limited to:
– not engaging in any abuse of e-mail or spamming, including (without being limited to) the posting or cross-posting of unsolicited articles with the same or substantially the same message to recipients that did not request to receive such messages; and
– refraining from taking any action aimed at deceiving or misleading any person, attempting to impersonate or misrepresent their affiliation to any person or forge headers or otherwise manipulate identifiers in order to disguise the origin of anything posted or transmitted through the Service; and
– not to use the Service under SOIT’s management to post or transmit anything which is defamatory, discriminatory, obscene, offensive, threatening, abusive, harassing, harmful, hateful or which carries child pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person’s personality rights; and
– not to use the Service to make fraudulent offers to sell or buy products, items or services or to offer or solicit for any type of financial scam such as “pyramid schemes” and “chain letters”; and
– not to use the Service in a manner that may infringe the intellectual property rights (for example copyright or trademarks) or other proprietary rights of others, including (without being limited to) the transmission of pirated software; and
– not to use the Service in any manner which could damage, impair, overburden or disable the Service or interfere with any other party’s use or enjoyment of the Service; and
– not to use the Service to post or transmit anything which contains viruses or any other destructive features, regardless of whether or not damage is intended; and
– not to cancel any post other than your own; and
– not to repeatedly post gratuitous off the topic postings; and
– not to gather e-mail addresses and/or names for commercial, political, charity or like purposes or use the Service to collect or attempt to collect personal information about third parties without their knowledge or consent; and
– not to violate the privacy of any person or attempt to gain unauthorised access to the Service or any other network, including (without being limited to) through hacking, password mining or any other means; and
– not to use the Service to engage in any illegal or unlawful activity.
The Client agrees that should the Client, its Directors, Employees, Agents or Contractors engage in any one or more of the above practices, which shall be determined in SOIT’s sole discretion and which decision shall be final, then SOIT shall be entitled, without prejudice to any other rights it may have, to:
– without notice, suspend the Clients access to the Service;
– terminate this Agreement with immediate effect;
– bill the Client for any costs incurred by SOIT, including (without being limited to) bandwidth, hacked or data hijacking costs, administration costs, downtime, usage of SOIT’s name or registered domain names and CPU cycles; and/or
If the Client terminates this Agreement at any time before the end of the Service term, SOIT will charge a cancellation fee of the balance of the Service Term, payable on the day of termination. The cancellation fee does not apply if the Client wishes to upgrade their Service before the end of the Service term. Notwithstanding the provisions above, all orders or contracts of sale, or agreed variations thereto, whether oral or in writing, shall be binding and subject to this Agreement and may not be cancelled by the Client.
The Client hereby agrees that SOIT may from time to time send the Client communications regarding (without being limited to) special offers/discounts which SOIT may negotiate for its members, operational changes that may affect the Service and/or new Services launched by SOIT from time to time.
RESTRICTIONS ON RE-SELLING
The Client in entering into this Agreement undertakes it will not re-sell or in any other way transfer SOIT Services. Any attempt to do so, whether successful of not, will result in the Service being terminated by SOIT, in which event the Client will be liable for a cancellation fee.
Should the Client be in breach of any provision of this Agreement, then SOIT shall be entitled, without prejudice to any other rights it may have and without notice to the Client, to forthwith claim immediate payment of all outstanding amounts payable in terms of this Agreement; suspend the Client’s access to the services; and/or terminate this Agreement, retain all amounts already paid by the Client and recover all costs incurred by SOIT, including (without being limited to) legal costs on an attorney and own Client basis. The Client irrevocably authorizes SOIT to enter its premises to repossess any products delivered, without court order, and indemnifies SOIT completely against any damage whatsoever, relating to the removal of repossessed products. SOIT is entitled to exercise a lien over any of the Client’s property in its possession until all outstanding debts have been paid. Any document shall be deemed duly represented to and accepted by the Client (a) within 3 (three) days of prepaid registered mail to any of the Client’s business or postal addresses or to the personal address of any director, member or owner of the Client; or (b) within 24 (twenty four) hours of being faxed or emailed to any of the Client’s fax numbers, or any director, member’s or owner’s fax numbers; or (c) within 24 (twenty four) hours of being e-mailed to any of the Client’s e-mail addresses, or any director, member’s or owner’s e-mail addresses; or (d) on being delivered by hand to the Client or any director, member or owner of the Client; or (e) within 48 (forty eight) hours if sent by overnight courier, and (f) within 7 (seven) days of being sent by surface mail. Any order is subject to cancellation by SOIT if the Client breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or if judgment is recorded against the Client or any of its principals. Despite the above The Client agrees that any notices sent in terms of this Agreement may be sent via e-mail.
CERTIFICATE OF INDEBTEDNESS
The amount due and payable by the Client to SOIT in terms of this Agreement at any time shall be determined and proved by a certificate signed by one of SOIT’s directors, whose appointment, qualification and authority need not be proved. Such certificate shall be deemed to be a liquid document for the purpose of obtaining summary judgment, provisional sentence and/or any other judgment against the Client.
CESSION AND DELEGATION
The Client may not cede any of its rights or delegate any of its obligations under this Agreement without SOIT’s express written consent. SOIT shall be entitled, in its sole discretion and without notice to the Client, to cede and transfer or delegate to any third party all or any of its rights or obligations under this Agreement.
The Client hereby consent to the jurisdiction of the Magistrate’s Court in the Republic of South Africa in respect of any proceedings that may be initiated by SOIT arising out of this Agreement, provided that SOIT shall be entitled, in its sole discretion, to institute such proceedings in the High Court of South Africa and, in such event, the Client consents to the jurisdiction of such court and agree that costs shall be calculated in accordance with the tariff of such court.
The signatory hereby binds himself in his personal capacity as Shareholder (in the case of a company), Member (in the case of a close corporation) or Owner, Partner, or Proprietor, as co-principal debtor jointly and severally for the full amount due to SOIT and agrees that this Agreement will apply in the same way to him.
AMENDMENT OF THIS AGREEMENT
SOIT reserves the right to amend this Agreement from time to time with a minimum of 30 (thirty) days’ notice to the Client. Any new version of the Agreement will be displayed on SOIT’s web site together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first displayed.
The Client acknowledges and agrees that this Agreement sets out the whole of the Agreement between SOIT and the Client and that there are no other agreements, guarantees or representations, either verbal or in writing, in regard thereto upon which any party is relying in concluding this Agreement. No indulgence, leniency or extension of time which SOIT may grant or show to the Client shall in any way prejudice SOIT or preclude SOIT from exercising any of its rights in the future.
The Client warrants that all the details furnished by the Client to SOIT are true and correct and that the Client will notify SOIT forthwith in the event of any change to such details.