Terms Of Service
TERMS AND CONDITIONS OF AGREEMENT 1 APPOINTMENT AND DURATION
1.1 The Supplier will supply The Customer with hardware, software and/or technology.
1.2 This Agreement shall commence on the Commencement Date and shall endure until such time as either The Supplier or The
Customer terminates the agreement.
2 CUSTOMER OBLIGATIONS
2.1 General Obligations and Undertakings
The Customer hereby undertakes that it will at all times during the continuance of this Agreement observe and perform the rules as set out in this Agreement and in particular:
2.1.1
2.1.2 No hardware, software and/or technology are allowed to be supplied to a 3rd party by The Customer.
2.1.3 Software or technology may not be changed or copied.
2.1.4 The Customer is not allowed sourcing other hardware, software and/or technology or manufacturing its own hardware,
software and/or technology similar to the Supplier's.
2.1.5 The Customer will not engage in anything which will be prejudicial to the interest of The Supplier and shall only distribute such written information regarding the products as is supplied to him/her by The Supplier.
2.1.6 The Customer will keep all confidential information strictly confidential and The Customer will only disclose such confidential information with the prior written consent of The Supplier. Upon the termination of this agreement for any reason whatsoever, The Customer shall dispose of all confidential information, which is in his/her possession in the manner required by The Supplier. The Customer acknowledges that nothing in this agreement shall confer any rights on The Customer or any Sub- distributor, whether of ownership or otherwise, regarding the confidential information.
2.1.7 The Customer acknowledges that any and all of the Intellectual Property Rights, specifically including Copyright is the exclusive property of The Supplier.
2.2 Specific Obligations The Customer shall:
2.2.1 purchase their own paper rolls
2.2.2 purchase airtime and electricity from The Supplier at an ongoing basis at a very competitive price - to be discussed and
negotiated; including supply agreement;
2.2.3 prices subject to the different networks
2.2.4 agree to the maintenance and insurance fee, which will be deducted monthly before the 7th of each month;
2.2.5 do business with its own business model and integrity.
3 THE SUPPLIER'S OBLIGATIONS
3.1 The Supplier shall at their own cost:
3.1.1 Provide the system to The Customer, to be utilized by The Customer for the purchase of the products and needs;
3.1.2 Provides any extensions on the system as reasonable required by The Customer to maximize the marketing and selling of the
products;
3.1.3 Supply and maintain all simcards;
3.1.4 Manage and maintain the Supplier's airtime vending system;
3.1.5 Provide adequate management software and relevant training in the use thereof to The Customer;
3.1.6 Provide the electronic connection between the system and the terminals;
3.1.7 Collect all defective vending terminals from The Clients for repairs and deliver it back to The Client;
3.1.8 Supply the terminals and printers to The Customer at no charge, with the understanding that all hardware supplied by The
Supplier to The Customer, remains the property of The Supplier. If hardware is bought this is not applicable.
3.1.9 Software must be chosen and paid by Customer.
3.2 The Supplier shall promptly repair all faulty terminals handed to it by The Customer, at no charge.
3.3 Not withstanding anything to the contrary, The Supplier does not warrant the income or the profitability of the terminals and technology supplied.
4 FINANCES
The Customer shall not engage or be interested either directly or indirectly as principal, distributor or employee in purchasing goods of any description or kind similar to the products supplied by The Supplier, or designed to perform the same function as the products or any similar function, whether alone or in conjunction with any other parties, under any circumstances.
4.1 The Customer shall pay The Supplier an insurance as stipulated in agreement. This fee is to cover the following units(see attached Annexure B ) * (Please note that the insurance will only cover theft/ lightning.)This fee will automatically be deducted from credits available, on or before the 7th of each month.
4.2 The Insurance fee will escalate in accordance with consumer's price index on a yearly basis effective as from 1 January 2012. The discounts received from the service providers will influence the above escalation and need to be discussed at the specific time. Escalation will be calculated according to the decrease or increase of the service providers with a formula percentage calculation;
4.3 Each party shall be regarded as a vendor in terms of the VAT act.
5 TRANSFER OF AGENCY
5.1 Not withstanding anything to the contrary herein contained, the terminal shall not be transferred to a third party, unless a new agreement with the third party is signed with The Supplier.
6 BREACH
6.1 Should The Supplier or The Customer breach any term of this agreement and fail to rectify such breach after receipt of written notice to rectify, within 14 (fourteen) days as from such receipt The Supplier shall have the right to cancel this agreement forthwith and claim for damages and/or approach Court for specific performance of the contract.
6.2 Should any breach be committed by The Customer as to unlawful competition and/or software technology copied and/or secrecy as mention in paragraph 3 of this agreement, The Supplier shall have the right to cancel this agreement with immediate effect and repossess all technology in the possession of The Customer not withstanding and over and above the mentioned rights in event of breach of this agreement.
6.3 The rights of the aggrieved party in clause 7.1 shall be without prejudice to any other or additional rights available to the aggrieved party under the common law, including but not limited to the right to claim any damages, which it may have suffered as a result of such a breach or default.
7 FORCE MAJEURE
7.1 Neither of the Parties shall be liable for a failure to perform any of its obligations insofar as it proves:
7.1.1 That the failure was due to an impediment beyond its control;
7.1.2 That it could not reasonably be expected to have taken the impediment and its effects upon the Party's ability to perform into
account at the time of the conclusion of this Agreement; and
7.1.3 That it could not reasonably have avoided or overcome the impediment or at least its effects.
7.2 An impediment, as aforesaid, may result from events such as the following, this enumeration not being exhaustive:
7.2.1 War, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage;
7.2.2 Natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning;
7.2.3 Explosions, fires, destruction of machines, of factories and of any kind of installations;
7.2.4 Acts of authority, whether lawful or unlawful, apart from acts from which the party seeking relief has assumed the risk by virtue
of any other provisions of this Agreement.
7.3 For the purposes of this clause "impediment" does not include lack of authorizations, of licenses, of permits or of approvals necessary for the performance of this Agreement and to be issued by the appropriate public authority.
7.4 Relief from liability for non-performance by reason of the provisions of this clause shall commence on the date upon which the party seeking relief gives Notice of the impediment relied upon and shall terminate upon the date upon which such impediment ceases to exist; provided that if such impediment continues for a period of more than 60 (sixty) days either of the Parties shall be entitled to terminate this Agreement.
8 DISPUTES
8.1 Any disputes arising from or in connection with this Agreement or the termination thereof shall be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa (or its successor in title) ("AFSA") by an arbitrator agreed to in writing by the parties or, failing such agreement within seven days after it is requested by any party, appointed by AFSA. There shall be a right of appeal as provided for in article 22 of such rules.
8.2 Each party to this Agreement:
8.2.1 Expressly consent to any arbitration in terms of the a foresaid rules being conducted as a matter of urgency; and
8.2.2 Irrevocably authorises the other to apply, on behalf of all parties to such dispute, in writing, to the secretariat of AFSA in terms
of article 23(1) of the aforesaid rules for any such arbitration to be conducted on an urgent basis.
8.3 If AFSA no longer exists the the arbitrator shall be appointed by the President for the time being of the Law Society of the Northern Provinces of South Africa and the arbitration shall be conducted in accordance with the Arbitration Act No. 42 of 1965.
8.4 Notwithstanding anything to the contrary contained in this clause 11, any party shall be entitled to apply for an interdict from any competent court having jurisdiction.
8.5 For the purposes of having any award made by the arbitrator being made an order of court, each of the parties hereby submits itself to the non-exclusive jurisdiction of the Gauteng North Division of the High Court of South Africa.
8.6 This clause 11 is severable from the rest of this Agreement and shall remain in full force and effect notwithstanding any termination or cancellation of this Agreement.
9 DOMICILIUM AND NOTICES
9.1 The parties choose domicilium citandi et executandi ("domicilium") for all purposes relating to this Agreement, including the giving of any notice, the payment of any sum, the serving of any process, at the addresses and facsimile numbers set out below:
9.1.1 RA Cellular CC
Physical Address: Postal Address: Facsimile: Electronic mail:
Shop 4,Retail City Building, c/o OR Tambo and Mandela Drive, Witbank, 1035 Postnet Suite 180, Private Bag X7260, Witbank, 1035
013-656 6884
rui@racellular.co.za
9.2 Any party shall be entitled from time to time, by giving written notice to the others, to vary its / any of its domicilium's referred to in clause 10.1 above to any other domicilium, provided that the party can only vary its physical address to another physical address within the Republic of South Africa.
9.3 Any notice given or payment made by any party to another ("addressee") which is delivered by hand between the hours of 09:00 and 17:00 on any business day to the addressee's physical domicilium for the time being shall be deemed to have been received by the addressee at the time of delivery.
9.4 Any notice given by any party to another which is successfully transmitted by facsimile to the addressee's facsimile domicilium for the time being shall be deemed (unless the contrary is proved by the addressee) to have been received by the addressee on the business day immediately succeeding the date of successful transmission thereof.
9.5 Any notice given by any party to another which is successfully transmitted by electronic mail to the addressee's electronic mail domicilium for the time being shall be deemed (unless the contrary is proved by the addressee) to have been received by the addressee on the date of successful transmission thereof.
9.6 This clause 10 shall not operate so as to invalidate the giving or receipt of any written notice which is actually received by the addressee other than by a method referred to in this clause 10.
9.7 Any notice in terms of or in connection with this Agreement shall be valid and effective only if in writing and if received or deemed to be received by the addressee.
9.8 Any notice received by the Company in terms of or in connection with this Agreement shall be deemed to have been received by the Company only when that notice has also been given by the party sending it to the other shareholder/s.
10 GENERAL
10.1 This Agreement constitutes the sole record of the agreement between the parties in relation to the subject matter hereof. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein. This Agreement accordingly supersedes and replaces all prior commitments, undertakings or representations, whether oral or written, between the parties in respect of the subject matter thereof.
10.2 No addition to, variation, novation or agreed cancellation of any provision of this Agreement shall be binding upon the parties unless reduced to in writing and signed by or on behalf of the parties.
10.3 No indulgence or extension of time which any party may grant to any other shall constitute a waiver of or, whether by estoppel or otherwise, limit any of the existing or future rights of the grantor in terms hereof, save in the event and to the extent that the grantor has signed a written document expressly waiving or limiting such right.
10.4 Without prejudice to any other provision of this Agreement, any successor-in-title, including any executor, heir, liquidator, judicial manager, curator or trustee, of any party shall be bound by this Agreement.
10.5 The signature by any party of a counterpart of this Agreement shall be as effective as if that party had signed the same document as all of the other parties.
10.6 Each provision of this Agreement is, not withstanding the grammatical relationship between that provision and the other provisions of this Agreement, severable from the other provisions of this Agreement. Any provisions of this Agreement which is or becomes invalid, unenforceable or unlawful in any jurisdiction shall, in such jurisdiction only, be treated as pro non scripto to the extent that it is so invalid, unenforceable or unlawful, without invalidation or affecting the remaining provisions of this Agreement which shall remain of full force and effect. The parties declare that it is their intention that this Agreement would be executed without such invalid, unenforceable or unlawful provision if they were aware of such invalidity, unenforceability or unlawfulness at the time of execution of this Agreement.
11 GOVERNING LAW
This Agreement shall in all respects (including its existence, validity, interpretation, implementation, termination and enforcement) be governed by the law of South Africa which is applicable to agreements executed and wholly performed within South Africa.