Terms of service

Delivery Terms - Subject to Standard Terms & Conditions hereby attached * Estimated Time of Delivery is 16-20 weeks from receipt of signed order confirmation accompanied by the proof of deposit, or appropriate finance contract. Actual delivery time may vary due to seasonality reasons. PentaSystems will confirm the estimated time of Delivery on order acceptance at the factory. * Local stock is subject to availability. Delivery time will be confirmed on order acceptance. * Where delivery and installation quotation has not been included, delivery terms are: Ex-warehouse Johannesburg Payment Terms - Subject to Standard Terms & Conditions hereby attached * 50% Non-refundable deposit to be paid on placement of order, the balance is due prior to release from the South African warehouse. * Items that are in-stock locally at time of order will require payment in full. * Items that are subject to a rental or finance contract, will only be order once an appropriate/ approved signed contract is in place and has been received. Payment on Financed or Rental items will be due upon delivery. Banking details: Account Name : PentaSystems Pty Ltd Account no: 1979-395-063 Account Type: Current Bank : NEDBANK LTD. Branch: 100 Main Street Branch Code: 19-79-05 Reference to be used on bank payment: 00237461 BP Code: Reference: 00237461-4 3/6 The client is herein referred to as "the Purchaser" and PentaSystems (Pty) Ltd is herein referred to as "PentaSystems", collectively referred to as the “parties”. The goods reflected in the Quotation, (Annexure "A") are herein referred to as "Equipment". The Quotation and Quotation Acceptance referred to herein, together with the Installation Agreement (if applicable) and these terms of Agreement, constitute the whole Agreement ("the Agreement") between the parties. The Client Purchase Order is regarded as pro non scripto (as if not written). The Quotation and Quotation Acceptance referred to herein, are those signed by the Purchaser and forming part of this Agreement. TERMS OF AGREEMENT OF SALE IN RESPECT OF QUOTATION DESCRIPTION: 1. PURCHASE The Purchaser purchases the Equipment from PentaSystems on the terms contained in this Agreement. 2. PAYMENT 2.1 Subject to 2.7, the Purchaser is bound by the payment and delivery terms stipulated on the Quotation and Quotation Acceptance. 2.2 Subject to 2.1 and 2.7, the Purchaser shall pay the purchase price, or the balance of the purchase price, whichever may be applicable in the circumstances, for the Equipment upon receipt from PentaSystems of a valid Value Added Tax Invoice for the full purchase price, free of exchange and without any deduction, set off or demand into the bank account of PentaSystems as reflected on the Value Added Tax Invoice. In the event that a deposit is payable by the Purchaser as stipulated on the Quotation and Quotation Acceptance, such deposit shall be payable by the Purchaser into the bank account of PentaSystems stipulated on the Quotation and Quotation Acceptance. 2.3 The Purchaser may not defer or withhold any amount payable pursuant hereto by reason of set off or counterclaim or for any other reason whatsoever. 2.4 Upon delivery of the Equipment to the Purchaser, PentaSystems shall issue a Value Added Tax Invoice to the Purchaser. 2.5 If PentaSystems cancels this Agreement as a result of default by the Purchaser in terms of this Agreement, the Purchaser shall continue to pay all amounts due in terms of this Agreement on due date, and the acceptance of such payments shall not in any way prejudice PentaSystems claim for damages, or any other claim which it may have against the Purchaser in terms of this Agreement. 2.6 Should the Purchaser fail or refuse to make any payment on due date, the balance outstanding shall attract interest at the maximum rate prescribed by the National Credit Act 34 of 2005 from date of default to date of payment. 2.7 Notwithstanding any provisions of this Agreement to the contrary, should PentaSystems be required to store the Equipment resulting from the Purchaser’s inability or unwillingness to take delivery thereof in accordance with the terms of this Agreement, the full purchase price or the balance of the purchase price, whichever may be applicable in the circumstances, shall be payable on the day immediately preceding the day upon which the Equipment will be put into storage. PentaSystems has the right to charge the Purchaser a daily storage fee, should the Purchaser not be able to take delivery or is not willing to take delivery of the equipment in accordance with the terms of this Agreement – refer to point 7 below. 2.8 The Purchaser shall always perform its obligations strictly in accordance with this Agreement, this notwithstanding any finance arrangements the Purchaser may make in respect of the purchase of the Equipment. 3. TITLE AND OWNERSHIP 3.1 PentaSystems reserves ownership of the Equipment until the full purchase price has been paid in full and the Purchaser shall have no claim of ownership to the Equipment, or a claim for retention, or any lien of whatever nature, in respect of the Equipment until the purchase price has been paid in full. 3.2 Until such time as the purchase price is paid in full, the Equipment shall not attach to any other property, whether movable or immovable, so that they accede thereto and the Purchaser undertakes, upon written request, to provide PentaSystems with a written waiver of accession from any person from whom PentaSystems may require such waiver, and in particular a landlord hypothec. 3.3 If required by PentaSystems, the Purchaser shall provide it with a letter from the owner/lessor of the premises where the Equipment is to be installed to the effect that such owner/lessor is aware of the fact that ownership of the Equipment vests with PentaSystems. This letter shall be provided before the Equipment is delivered. 4. RISK OF LOSS 4.1 The risk of loss or damage to the Equipment, from whatsoever cause arising, shall pass to the Purchaser:- 4.1.1 If the Equipment is not required to be stored by PentaSystems, from the date and time the Equipment is offloaded at the delivery address; 4.1.2 If the Equipment is required to be stored by PentaSystems, from the date and time the Equipment is delivered into storage; or 4.1.3 If the Equipment is to be delivered ex works, PentaSystems’ warehouse in Johannesburg (Incoterms, 2010), from the date and time the Equipment has been inspected and collected from PentaSystems’ warehouse in Johannesburg by the Purchaser. 5. DELIVERY 5.1 PentaSystems shall notify the Purchaser that the Equipment is ready for delivery by giving the Purchaser at least 3 (three) business days written notice of the delivery date (“Delivery Date”). 5.2 The Purchaser acknowledges that PentaSystems is dependent upon the suppliers of the Equipment to supply same to it in accordance with orders placed with such suppliers. It is also recorded that some of the Equipment may be ordered from overseas. 5.3 Should the estimated time of delivery of the Equipment contemplated in the Quotation and Quotation Acceptance not be met due to: 5.3.1 A failure by PentaSystems’ suppliers to supply the Equipment to it timeously; 5.3.2 Force majeure, “Acts of God” or circumstances beyond the control of PentaSystems, including wars, strikes, riots, flooding or earthquakes; 5.3.3 Any other circumstances beyond the reasonable control of PentaSystems, PentaSystems shall not be held liable to the Purchaser or any other third party in whatsoever manner for damages, whether it be consequential or otherwise, as a result thereof. In such an event, Purchaser also holding PentaSystems harmless from any claims by any third parties. 5.4 In the event for any time frames for delivery not met by PentaSystems, PentaSystems shall communicate with the Purchaser either in writing or in person of the delay and the reason there-of and PentaSystems shall be entitled to extend the Estimated Time of Delivery by written notice to the Purchaser for the anticipated new Time of Delivery. In the event of a further delay exceeding 8 (eight) months in total time delay, this Agreement may be cancelled at the option of either party and each party shall be restored to their status quo ante and neither party shall have any further claim against the other for such cancellation. It being specifically agreed that in the event of a cancellation of this Agreement for the aforementioned reason, any amount pre-paid by the Purchaser shall be immediately refundable without any set-off or deduction by PentaSystems into the bank account nominated by the Purchaser in writing. 5.5 The Equipment shall be delivered to the address in accordance with the delivery terms stipulated on Quotation and Quotation Acceptance and PentaSystems shall not be obliged to deliver the Equipment to any other address, notwithstanding request or demand by the Purchaser to do so and, Reference: 00237461-4 4/6 furthermore notwithstanding tender by the Purchaser to pay for any additional costs to have the Equipment delivered to a different address. 5.6 Failure or refusal by the Purchaser to accept delivery of the Equipment on the Delivery Date shall entitle PentaSystems to store the Equipment in accordance with 2.7 above and 7 below. 5.7 The Purchaser shall inspect the Equipment upon acceptance of delivery from PentaSystems. and by signing, warrants that the good have been delivered to the Purchaser without patent and fit for the purpose of its intended use. 5.8 PentaSystems shall be entitled to make partial delivery of the Equipment the Purchaser shall be liable to pay the purchase price in full in respect of Equipment delivered. 6. ACCESSIBILITY FOR INSTALLATION 6.1 Should the Purchaser require the Equipment to be installed by PentaSystems, the Purchaser warrants that the premises at the delivery address where the Equipment is to be installed has the required access and that it is fit for purposes of installation. Should PentaSystems be required to make arrangements to gain access to the premises for purposes of installation or delivery, the Purchaser shall be liable for all such expenses as well as the normal hourly rate charged by PentaSystems to make the premises accessible, subject to the security regulations of the premises. 6.2 PentaSystems may refuse to install the Equipment if breach of the warranty referred to in 6.1. 7. STORAGE 7.1 Subject to 2.7 and 5.6, PentaSystems shall be entitled (but not obliged) to put the Equipment in storage in the event of the Purchaser being unable or not willing to accept delivery of the Equipment on the Delivery Date, notwithstanding that PentaSystems is ready to make such delivery and has notified the Purchaser thereof in accordance with 5.1 above. 7.2 PentaSystems shall not be obliged to store the Equipment for a period exceeding 6 (six) weeks from the Delivery Date where after PentaSystems may demand that the Purchaser collects the Equipment from storage, failing which, the Equipment shall become or remain the property of PentaSystems unless otherwise agreed in writing. 7.3 The Purchaser shall be liable to pay for all costs of storage, removal and/or relocation of the Equipment from one storage facility to another storage facility, which costs shall be calculated per square metre plus labour and transport costs, if applicable. 8. INSTALLATION 8.1 PentaSystems or its preferred supplier, will install the equipment at the applicable address and ensure that the Equipment is in good working order; 8.2 Should PentaSystems or its preferred supplier not install the Equipment, the warranty, provided by the manufacturer will fall away, unless otherwise agreed in writing with PentaSystems. 9. WARRANTY 9.1 PentaSystems hereby warrants to the Purchaser to extend all and any warranties applicable to the Equipment – refer to point 8.2 10. SOFTWARE LICENSING 10.1 To the extent applicable, and at the request of the Purchaser, and subject to the terms conditions and prices then in force and provided that PentaSystems has such available at the date of the request, PentaSystems agrees to extend the license of use of the integrated software in respect of the Equipment sold under this Agreement, to the Purchaser and the Equipment shall be considered "ready for use" when the first program has been supplied and installed. This list of software in respect of the Equipment may be defined at the request of the Purchaser, (see Annexure "B"). 11. SUPPLIES 11.1 It is recorded that for the correct functioning of the Equipment, it is necessary to use the cards, discs, tapes, CDROM’S, ribbons, paper and other accessories which conform to the PentaSystems specification. PentaSystems shall supply the Purchaser with such items, including the specifications which may apply, subject to its usual conditions and at the prices then in force. 12. PROVISION FOR MAINTENANCE 12.1 PentaSystems agrees to provide service and/or maintenance on the Equipment in terms of the requirements of such Equipment and as defined in the Hardware and Software Agreement that may be signed between the parties, it being recorded that PentaSystems shall not be obliged to provide such service and/or maintenance unless the aforementioned Hardware and Software Agreement is signed by both parties. 13. BREACH 13.1 Without prejudice to any other rights that PentaSystems may have in terms of the common law or otherwise, it shall be entitled (but not obliged) to cancel this Agreement immediately and with written notice to the Purchaser on the occurrence of any one or more of the following events: 13.1.1 If the Purchaser fails to make any payment due in terms of this Agreement on due date; 13.1.2 If the Purchaser commits any other breach of this Agreement and fails to remedy same within 7 (seven) days from the date on which PentaSystems calls upon it in writing to do so; 13.1.3 If the Purchaser is a company or close corporation and is placed under any order of liquidation, judicial management or business rescue prior to payment of the purchase price being made in full according to the terms of this Agreement; 13.1.4 If the Purchaser is an individual, trust or partnership and if the estate of that individual, trust or any partner is surrendered as insolvent, or if the estate is provisionally or finally sequestrated prior to payment of the full purchase price being made in terms of this Agreement; 13.1.5 If the Purchaser enters into any general compromise with its creditors prior to payment of the full purchase price being made in terms of this Agreement. 13.2 In the event of cancellation of this Agreement, PentaSystems shall be entitled to retake possession of the Equipment, retain all amounts already paid in respect of the purchase price as rouwkoop ("non-refundable deposit should the purchaser withdraw from the Agreement") and a pre-estimate of damages which the Purchaser declares to be fair and reasonable and in addition thereto to claim direct damages from the Purchaser as a result of its breach. 13.3 PentaSystems may elect to enforce this Agreement, despite breach by the Purchaser, in which event, PentaSystems shall do this without prejudice to its rights to claim direct damages from the Purchaser as a result of such breach. 13.4 The Purchaser shall be liable to pay the legal costs of PentaSystems on the attorney/client scale in the event of PentaSystems instituting legal action to enforce its rights in terms of this Agreement. 14. NOTICES 14.1 The Purchaser chooses its address stated on the Quotation and Quotation Acceptance as its domicilium citandi et executandi for all purposes, including but limited to notification in terms of this Agreement and service of all pleadings and legal processes resulting from a breach of this Agreement. 14.2 PENTASYSTEMS chooses its domicilium citandi et executandi at: Reference: 00237461-4 5/6 Technogym Building Design Quarter District Cnr William Nicol Drive & Leslie Road East Fourways, Sandton 2067 15. SESSION 15.1 The Purchaser may not without the prior written consent of PentaSystems, which consent shall not be unreasonably withheld, cede or assign any of its rights or obligations in terms of this Agreement to any third party. 16. JURISDICTION 16.1 The parties hereby consent to the jurisdiction of the Magistrates Court in in terms of section 45 of the Magistrates’ Court Act 32 of 1944, as amended, and for all purposes in terms of this Agreement. Either party shall nevertheless be entitled to institute action in any other Court having competent jurisdiction. 17. RELAXATION 17.1 No act or omission or relaxation by PentaSystems to carry out any of its obligations or to enforce any of its rights in terms of this Agreement shall prejudice PentaSystems’ rights or be deemed a waiver of any of its rights. 18. ENTIRE CONTRACT 18.1 This Agreement forms the whole agreement between the parties and no change or amendment may be made hereto unless such change or amendment is reduced to writing and signed by both parties. 18.2 The Purchaser acknowledges that no representations or undertakings not contained in this Agreement have been made or given to the Purchaser by PentaSystems to induce the Purchaser to enter into this Agreement. 19. CERTIFICATE OF INDEBTEDNESS 19.1 A certificate signed by any director of PentaSystems showing any amount due by the Purchaser in terms of this Agreement shall be prima facie proof of such indebtedness. 20. Agreement 20.1 This agreement supersedes any and all previous agreements between the parties relating to the subject matter contained herein, whether verbal or in