Terms and Conditions of Sale
1.1. “Application” means Seller’s application for business credit extended to and signed by Buyer in connection with these Terms.
1.2. “Buyer” means the person or entity specified in the Order or SOW.
1.3. “Buyer Material” means Buyer’s preexisting intellectual property provided by Buyer for the purpose of an Order or SOW.
1.4. “Confidential Information” means information received by the receiving party from the disclosing party which (a) is marked as “Confidential” or “Proprietary”; or (b) would reasonably be considered confidential and/or proprietary under the circumstances surrounding disclosure.
1.5. “Customer” means Buyer’s customer, including any end user, of the Products, Software, and/or Services.
1.6. “Deliverables” means any work, Products, reports, or other deliverables developed and provided by Seller as part of the Services and required under an Order or SOW.
1.7. “Existing Agreement” means a mutually-executed agreement between the parties that governs the purchase and sale of the Products, Software and/or Services.
1.8. “Order” means a purchase order issued by Buyer to Seller for the purchase and/or use of the Products, Software, and/or Services.
1.9. “Products” means those products, materials, or goods described in an Order or SOW.
1.10. “Seller” means the selling entity specified in the Order or SOW.
1.11. “Seller Materials” means any and all processes, formulas, tools, ideas, concepts, methodologies, software, know-how, business practices, trade secrets, object code, source code, documentation, information and ideas developed by Seller or its licensors, and all intellectual property rights therein.
1.12. “Services” means those specific tasks, functions, responsibilities, Deliverables, and other services described in an Order or SOW.
1.13. “Software” means the computer programs, operating systems, interfaces, software-as-a-service, applications, or other software specified in an Order or SOW.
1.14. “SOW” means a scope of work document between Seller and Buyer that specifies Products and/or Services provided by Seller to Buyer.
1.15. “Special-Order Product” means any Product (i) that Seller procures or specially stocked for Buyer (including Products that are custom made, modified, altered, or includes special features), (ii) not readily saleable by Seller to other customers, or (iii) identified by Seller as non-cancelable or non-returnable.
1.16. “Terms” means these Terms and Conditions of Sale.
- SCOPE OF AGREEMENT
Unless there is an Existing Agreement, these Terms govern the sale, purchase and use of Products, Software, and/or Services by Buyer from Seller and, together with the Application, and each Order and SOW, constitutes the entire and separate agreement between the parties with respect to the subject matter of these Terms. If a conflict arises between or among these Terms, the Application, and an Order and/or SOW, these Terms shall prevail unless otherwise expressly agreed in writing by authorized representatives of the parties. If Buyer is accepting these Terms on behalf of another party, Buyer represents and warrants that Buyer has full authority to bind such party to these Terms. Any additional, preprinted or different terms contained on any purchase order, portal, or other communication from Buyer purporting to apply shall be deemed void and unenforceable unless expressly agreed and signed in writing by authorized representatives of both parties. Buyer’s or its Customer’s placement of an Order or receipt or acceptance of the Products, Software and/or Services constitute acceptance of these Terms.
Seller has the right, in its sole discretion, to cancel, accept or reject any Order, in whole or in part, at any time. Any change requested by the Buyer to any aspect of the scope of an Order or SOW must be agreed in writing by both parties and may result in a price and/or delivery adjustment as determined by Seller. If Seller authorizes that all or part of an Order or SOW be terminated or suspended by modification, rescission or as otherwise provided in Sections 6 and 14 Buyer shall pay termination charges equal to Seller’s costs associated with the Order or SOW, as determined by generally accepted accounting principles, plus a reasonable profit on the entire Order or SOW. Seller’s costs shall include any amount Seller must pay to its suppliers and manufacturers relating to the relevant Order or SOW. Buyer agrees it cannot cancel any Order for Special-Order Product. If Buyer cancels an Order for Special-Order Product and Seller agrees to such cancellation, Buyer shall pay or reimburse Seller the purchase price of the Special-Order Products plus any associated cancellation fees. Seller may, in its discretion, require a non-refundable deposit for any Special-Order Product ordered by Buyer.
The Services requested by Buyer shall be specified in an Order or SOW. If applicable, Buyer shall provide Seller with reasonable access to its system and/or premises as required to provide the Services. Seller may use subcontractors to perform its contractual obligations under an Order or SOW. If Seller uses subcontractors, Seller will be solely responsible for ensuring that they comply with their respective contractual requirements. Buyer shall not supervise or direct the performance of any Seller subcontractors. If Seller’s performance of any of its obligations is prevented or delayed by Buyer: (a) Seller shall, without limiting its other rights or remedies under these Terms or as otherwise provided by law or equity, have the right to suspend or terminate performance of the Services; and (b) Buyer shall be liable for any costs and expenses sustained or incurred by Seller as a result thereof. Without limiting the foregoing, completion times referenced in an Order or SOW are only estimates.
Prices on Seller’s website, catalogues or in Seller quotes are subject to change without notice. Unless otherwise extended in writing by Seller, all prices on a Seller quote will expire and become invalid upon the expiration date stated therein, provided however, Seller reserves the right to update its quote or price in the event of an increase in tariffs, levies, duties, freight or importation cost, supplier pricing, or a material currency exchange rate fluctuation. In such event, Seller will provide an updated quote or price and will not ship Product or provide Software or Services until Buyer receives an Order with the correct price. Any manifest errors are not binding on Seller. Buyer is liable for applicable transaction taxes, including sales, use, and value-added taxes, goods and services taxes, duties, customs, tariffs, and other government-imposed transactional charges however designated (and any related interest or penalty) on amounts payable by Buyer (collectively, “Transaction Taxes”), regardless of when such Transaction Taxes are levied or imposed. Such Transaction Taxes shall be due whether or not included on the invoice, Order or SOW. Buyer shall provide Seller with proof of exemption from Transaction Taxes at least fifteen (15) business days before the invoice due date.
(a) Payment for Products, Software and Services must be made (i) in the currency identified in the invoice or in its equivalent as specified in writing by Seller, and (ii) by wire transfer or any other means specified by Seller, at its sole discretion. Buyer shall pay any Seller invoice within thirty (30) days, or specified and agreed upon terms, from invoice date without any right to offset, counterclaim, holdback or deduction. Buyer must provide notice of any payment dispute within ten (10) days of the date of the invoice or Buyer waives any right to dispute such invoice; however, any such dispute shall not delay timely payment to Seller. Seller reserves the right to require guarantees, security or payment in advance of shipment from Buyer. In the event Buyer fails to pay the total sums due on an invoice by the due date or if an Insolvency Event (as defined in section 14.3 below) occurs, the entire outstanding balance due to Seller on all invoices shall be accelerated and become due in full immediately and the maximum allowable charge and/or interest allowed by applicable laws shall be applied to all past due accounts commencing from the due date of the invoice until paid. Seller shall also be entitled, in addition to all other remedies available at law or in equity, to suspend performance of any outstanding Orders or SOWs and to recover reasonable attorneys’ fees and/or other expenses incurred collecting all outstanding sums from Buyer or otherwise enforcing or successfully defending these Terms. Seller may set off any amount due from Buyer from any amounts due to Buyer. Seller reserves the right to convert any payment into electronic funds at its discretion. (b) If Seller extends business credit to Buyer under an Application, then Seller’s Business Credit Terms published at https://jaycor.co.za/terms-and-conditions/, as amended from time-to-time, shall apply and are expressly incorporated herein by reference.
6.1 . PAYMENT – NON-ACCOUNT-HOLDERS
6.1.1The Customer shall pay a deposit of 50% of the Pro-Forma Invoiced Amount at the time of placing the order, with the balance of 50% paid prior to Deliverables dispatched as part of an Order or SOW.
6.1.2. No order shall be placed with the supplier by the Company prior to 50% payment of the Pro-Forma Invoiced Amount being received.
Unless otherwise agreed to in writing, (i) all Product shipments shall be FOB shipping point, and (ii) Seller may, in its sole discretion, use any commercial carriers and method and route of transportation for shipment of the Products. Buyer shall be responsible for shipping charges, including all applicable freight, shipping, insurance and handling charges, unless otherwise agreed to in writing. Title to and risk of loss of the Products passes to Buyer upon transfer to the carrier at the shipping point. Software may be delivered electronically. Shipping dates or other applicable performance dates are estimated on the basis of prompt receipt of the Order and all information, drawings and approvals required to be furnished by Buyer. In the event Buyer, verbally or in writing, confirms a delivery date with Seller but subsequently suspends the Order or is unable to accept delivery, Buyer shall reimburse Seller for all costs and expenses Seller incurs as a result thereof, including, but not limited to, reasonable storage costs. No delay in the shipment or delivery of any Products relieves Buyer of its obligations under these Terms. Seller reserves the right to make partial shipments without liability or penalty. Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of an Order.
Buyer shall be deemed to have accepted the Products and Services unless written notice of rejection is given to the Seller within five (5) business days from date of delivery.
Product returns shall be made pursuant to Seller’s Product Return Policy, published at https://jaycor.co.za/refund-policy/, as modified from time to time. Seller reserves the right to apply re-stocking and handling fees to any Product returns. Software cannot be returned without Seller’s express prior written authorization.
Buyer shall submit all claims for shortages in writing to Seller within ten (10) days of receiving the Products; otherwise such claims will be deemed waived. Quantities are subject to normal manufacturer allowances. In the case of wires and cables, such allowances are plus 10% and minus 5%.
Buyer acknowledges and agrees that any drawings, designs, suggestions, recommendations, or advice as to any products, software, or services including installation or use recommendations (collectively, “Recommendations”) are provided “as is” and are for informational and conceptual purposes only. Buyer acknowledges that in the event it follows any such Recommendations, it does so at its own risk and agrees that Seller will not be liable for any damage, claims, liabilities, or losses suffered by Buyer or any third party, directly or indirectly, due to Buyer following any Recommendations. Any legal or regulatory compliance obligations shall remain Buyer’s sole responsibility, and nothing herein is intended to shift any such burden from Buyer to Seller.
12.1. Product and Software Warranty. Seller is only a reseller of Products and Software and shall transfer and assign to Buyer any and all transferable warranties made to Seller by the manufacturer of the Products and Software. Unless otherwise specified in a writing signed by Seller, Seller provides no independent warranty for any Products and Software. Buyer’s sole and exclusive remedy for any alleged non- conforming part, defect, failure, inadequacy, or breach of any warranty related to Products and Software (collectively, “Defects”) shall be limited to those warranties and remedies provided by the manufacturers or licensor thereof. Seller is not responsible for obtaining or paying for access to, or uninstalling, installed Products, delivering replacement Products to the installation site, or installing replacement Products. Seller’s obligations under this Section 12.1 will be void unless Buyer provides Seller with notice of the Defect within 30 days of the date Buyer discovered or should have discovered the Defect. Buyer shall contact Seller prior to contacting the manufacturer or licensor. In the event Buyer provides notice of a Defect to the manufacturer or licensor, Buyer shall immediately notify and engage Seller on any and all discussions and actions to be taken with such manufacturer. Seller DOES NOT WARRANT that the Software will be free from errors or defects, will meet Buyer’s needs, or will operate without interruption. Seller DOES NOT WARRANT that the Software will provide fail-safe performance when used in hazardous environments, including any application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage. If Seller supplies any Products and Software which include open source software, Seller is not liable for defects in title or quality of the information, software or documentation, or for ensuring that it is correct, accurate, free of third-party property rights and copyrights, complete and/or usable.
12.3. Services Warranty. Seller warrants that the Services it provides will be performed in a professional manner consistent with relevant industry standards. Provided Buyer notifies Seller in writing and in sufficient detail of a breach of the Services warranty in this section 12.3 within fifteen (15) days after provision of the non-conforming Services, Seller will, at its option, (a) re-perform the Services at no additional cost to Buyer or (b) credit Buyer the fees actually paid to Seller associated with the non-conforming Services. This is Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive liability, with respect to any breach of warranty relating to the Services it provides. This Services warranty is personal to Buyer and may not be assigned, transferred or passed-through to any third party.
12.4. Forfeiture of Warranty. The warranties described herein do not cover wear and tear and shall be ineffective and not apply to those Products, Software and Services that have been subjected to misuse, abuse, neglect, accident, damage, improper installation, unauthorized modification, or improper maintenance or repair, including, but not limited to, use not in accordance with the manufacturer’s or other provider’s specifications, license or instructions.
12.5. Buyer’s Information. Buyer acknowledges and agrees that, in performing its obligations under these Terms, Seller will rely upon the accuracy and completeness of the information and documentation Buyer provides, and that Seller’s performance is dependent on Buyer’s provision of complete and accurate information and data. It is Buyer’s responsibility to ensure that the Products, Software, and Services are the ones that it has requested and that all specifications and quantities are correct.
12.6. Disclaimer. The foregoing warranties are exclusive and in lieu of, and seller disclaims and excludes, and buyer waives, all other express and implied warranties of any kind, including but not limited to any warranties of merchantability, fitness for a particular purpose, against redhibitory defects, conformity to any representation, description, or specification, performance, non-infringement, and of any other type, regardless of whether arising by law (statutory or otherwise), course of performance, course of dealing, or any other legal or equitable basis. In the event disclaimer of warranty statements are disallowed by law, such express or implied warranties shall be limited in duration to the lesser of the applicable warranty period or the minimum period required by law. Except as otherwise set forth herein, the products, software, and services are provided “as is” except to the extent the manufacturer or licensor honours any warranty expressly made by it.
- LIMITATION OF LIABILITY
To the fullest extent permitted by law, in no event shall seller be liable for any lost profits, lost business, lost revenue, delay damages, or any other special, incidental, liquidated, indirect, punitive, or consequential damages, however arising, even if the parties have knowledge of the possibility of such damages and whether or not such damages are foreseeable. Furthermore, to the fullest extent permitted by law, seller’s liability on any claim arising out of or connected with these terms or the manufacture, sale, delivery or use of the products, software, or services, whether in tort (including negligence and strict liability), misrepresentation, breach of contract, or otherwise, shall not exceed the amount actually paid for the products, software, and/or services giving rise to the claim.
- TERMINATION AND SUSPENSION.
14.1. In addition to and subject to Seller’s rights set forth in section 6, in the event of any material breach of these Terms, Order, or SOW by either party, the non-breaching party may cancel the applicable Order or SOW by giving thirty (30) days’ prior written notice thereof; unless the party in breach has cured the breach prior to the expiration of the thirty (30) day period.
14.2 In the event Seller or Buyer terminates an Order, Buyer shall not be entitled to any refund or credit of fees paid or payable hereunder. Buyer shall remain liable for Payment of invoices for Products and Software already delivered and Services already performed and for the fees and costs described in section 3 above, and payment of any manufacturer cancellation charges for unshipped items. In the event an Order is terminated, all licenses granted therein shall also terminate. Subject to the limitations and other provisions of these Terms, any provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of these Terms.
14.3. In addition to any other remedies provided under these Terms or applicable law, Seller may exercise any reclamation rights and/or suspend or terminate an Order or SOW with immediate effect if Buyer: (i) fails to pay any amount owed to Seller when due; (ii) fails to comply with any of its obligations herein; (iii) experiences an adverse change in financial position or becomes a credit risk; or (iv) becomes insolvent, receivership, reorganization or assignment for the benefit of creditors, to the extent permissible under law (each, an “Insolvency Event”).
The receiving party shall protect the disclosing party’s Confidential Information with the same degree of care as the receiving party normally uses in the protection of its own Confidential Information, but in no case with any less degree than reasonable care. The receiving party shall not disclose to any third party any Confidential Information it receives from the disclosing party. Confidential Information excludes information that: (i) is publicly available other than by an act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party; (iii) was known by the receiving party prior to its receipt without any breach of any confidentiality obligations; or (iv) was independently developed by the receiving party without use of the disclosing party’s Confidential Information. If the receiving party becomes legally obligated to disclose any Confidential Information by subpoena, court order or other lawful government action, the receiving party may disclose the Confidential Information only to the extent so ordered and, to the extent permitted by law, after providing prompt written notification to the disclosing party of the pending disclosure. Neither party may use such Confidential Information in any way for any purpose, except as authorized under the Order or SOW. Either party may disclose Confidential Information to its auditors or attorneys under an obligation of confidentiality no less stringent, or Seller to its affiliates and/or third parties on a need-to-know basis to the extent necessary. If Seller offers to sell Buyer Products, Software, or Services from a specific manufacturer, Buyer shall not purchase such Products, Software, or Services directly from said manufacturer unless Seller provides prior written approval.
- FORCE MAJEURE
Seller shall not be liable for any failure to perform its obligations under an Order or SOW resulting directly or indirectly from, or contributed to or by acts of God, acts of terrorism, civil or military authority, epidemic or pandemic, fires, strikes or other labor disputes, accidents, floods, war, riot, inability to secure raw material or transportation facilities, hacking or other malicious attack, dissolution of the applicable manufacturer’s business, acts or omissions of carriers, or any other circumstances beyond Seller’s reasonable control.
- RELATIONSHIP OF PARTIES
The parties are independent contractors and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship. A person who is not a party to an Order or SOW shall not have any benefit or rights under or in connection with either.
These Terms shall be construed and interpreted without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. No amendments, modifications, waivers, rescission or termination of these Terms can be made through the parties’ course of dealings and no such change can be made except in writing and signed by authorized representatives of the parties. Failure by a party to exercise any right or remedy under these Terms shall not be deemed a waiver of such right or remedy unless in writing signed by the party, nor shall any waiver be implied from the acceptance of any payment. No waiver by a party of any right shall extend to or affect any other right, nor shall a waiver by a party of any breach extend to any subsequent breach. Buyer shall not assign an Order or SOW, by operation of law or otherwise, without the express written approval of Seller. Any attempt to assign or transfer all or any part of these Terms without first obtaining that written consent will be void or voidable, at Seller’s election. Any provision of these Terms that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be limited or eliminated to the minimum extent required by that jurisdiction, and the remaining provisions shall remain in full force and effect. Buyer acknowledges that the terms or content of any hyperlinked document, as amended from time to time, are incorporated in these Terms by reference and that it is Buyer’s responsibility to review the terms or content in the hyperlinks referenced. All notices under these Terms must be in writing (e.g., e-mail or physical mail) and addressed to the other party at its address set forth in the Order or SOW.