Conekt Terms of Business
TERMS OF BUSINESS
1.1. These standard terms and conditions contained in this document apply to all services performed by Conekt for its Customers.
1.2. These terms and conditions allow us to provide you with the most reliable and effective service possible.
DEFINITIONS
2.1. In these general terms and conditions and in the attached proposal letter, the following expressions shall have the meanings as indicated:
2.2. Agreement” means the agreement which is made between Conekt and the Customer when the Customer accepts the proposal or quotation in writing.
2.3. “Customer” means the company or other person or entity which is identified as such in a Proposal or Quotation.
2.4. “Materials” means the proposals, reports, methodologies, documentation and other material produced by Conekt or otherwise supplied by Conekt in the course of or arising from the performance of the Services.
2.5. “Proposal” means a written offer which is made by Conekt to the Customer for the performance by Conekt of the Services and which incorporates these Terms of Business by reference.
2.6. “Services” means the general management or technology consulting or other services which are defined in the Proposal and which are accepted by the Customer in writing.
2.7. “Terms of Business” means the standard terms and conditions contained herein.
2.8. Conekt shall mean Conekt Business Group (Pty) Ltd.
GENERAL
3.1. The Customer hereby acknowledges that he/she has read and understood each term of this agreement and accepts them as binding.
3.2. The Customer warrants that the signatory on any Credit Application, Invoice or Quote has been duly authorised to contract on the customer’s behalf.
3.3. The signatory hereby binds himself/herself in his/her personal capacity as co-debtor in solidum for the full amount due to Conekt and agrees that these Standard Conditions will apply mutatis mutandis to him/her and he/she renounces the benefit of excursion and division
3.4. It is the sole responsibility of the Customer to determine that any and all goods or services ordered are suitable for the purpose of intended use.
3.5. The Customer hereby confirms that any and all goods and services on the invoice issued duly represent the goods and services ordered by the Customer at the prices agreed to by the Customer and where performance/delivery has already taken place that the services and goods were inspected and conform to the quality and quantity ordered.
3.6. Any delivery note (copy or original) signed by the customer and held by Conekt or its partners shall be conclusive proof that delivery was made to the customer.
3.7. All orders, whether oral or in writing, will be binding and subject to these standard conditions of agreement and may not be cancelled unless within the provision of this agreement or the proposal or quotation.
3.8. Conekt shall be entitled in its sole discretion to split the delivery of the goods ordered in the quantities and on the dates it decides.
3.9. Conekt shall be entitled to invoice each delivery actually made separately.
3.10.The risk of damage to or destruction of goods passes to the Customer on conclusion of the agreement of sale.
3.11.In the case of repairs undertaken by Conekt or its partners, repair times given are merely estimates and are not binding on Conekt or its partners. Stock booked in for repairs remain the property of the customer and should therefore be covered by the customer insurance policy. Conekt will take all reasonable steps to ensure against theft, fire or damage
3.12.Delivery and installation times given are merely estimates and are not binding on Conekt or its partners.
3.13.In the event of new goods that are defective, the rights of the Customer are limited to the factory guarantee of the goods supplied. Services carry no guarantees unless otherwise stated in the proposal or quotation.
3.14.To be valid, guarantee claims must be supported by the Original Tax invoice and the undamaged packaging of the goods.
3.15.All guarantees are immediately voided should any equipment be tampered with or should the seals on the equipment be broken by anyone other than Conekt.
3.16.Liability is restricted to the cost of repair or replacement of the faulty goods or services at the sole discretion of Conekt
3.17.It is the duty of the customer to return any defective goods to the premises of Conekt at the Customer’s own cost, unless a valid agreement exists between the Customer and Conekt to the contrary.
3.18.Under no circumstances will Conekt be liable for any damages arising from any misuse or abuse of the goods or services
3.19.No claims under this contract will arise unless the customer has, within 7 days of the alleged breach or defect occurring given Conekt written notice to rectify any defect or breach of contract.
THESE TERMS AND CONDITIONS TO PREVAIL
4.1. These terms and conditions, together with the Service Specification Schedule, (hereinafter collectively referred to as “this agreement”) shall constitute the whole of the agreement between Conekt and the Customer relating to the subject matter hereof, notwithstanding anything in the Customer’s inquiry, specification, acceptance, order or other documentation or discussion to the contrary.
4.2. CESSION
4.2.1. Neither party shall be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third party unless consented to in writing by Conekt, which consent may not be unreasonably withheld.
4.3. HEADING AND INTERPRETATION
4.3.1. The clause headings contained herein are for reference purposes only and shall not be used in the interpretation of this Agreement. Words importing any one gender include the other gender, the singular includes the plural and vice versa, and natural persons includes created entities (corporate or unincorporated) and vice versa.
4.4. DOMICILIUM CITANDI ET EXECUTANDI
4.4.1. For all purposes, including but not by way of limitation, the giving of any notice, the making of any communication and serving of any process, Conekt and The Customer respectively choose their domicilium citandi et executandi (“domicilium”) at their respective street addresses appearing on the face hereof. Either party shall be entitled from time to time to vary its domicilium and shall be obligated to give notice to the other within ten days of the said change. Any notice which either party may give to the other shall be posted by prepaid registered post or hand delivered to the other party’s domicilium and shall be presumed, unless the contrary is proved by the party to whom it is addressed, to have been received by that party on the tenth day after the date of posting or on the day of delivery as the case may be.
4.5. MAGISTRATES’ COURT JURISDICTION
4.5.1. For the purpose of all or any proceedings hereunder the parties consent to the jurisdiction of the relevant magistrates’ court or any such other court having territorial jurisdiction, notwithstanding that such proceedings are otherwise beyond its jurisdiction. This clause shall be deemed to constitute the required written consent conferring jurisdiction upon the said court pursuant to section 45 of the magistrates’ Court Act, 1944, provided, nevertheless, that any party shall have the right at its sole option and discretion to institute proceedings in any other competent court.
4.6. FORCE MAJEURE
4.6.1. Neither party shall be liable for non-performance under this agreement to the extent to which the non-performance is caused by events or conditions beyond the control of the other party, provided that the other party makes all reasonable efforts to perform.
4.6.2. In the event that any provision of this Agreement conflicts with any statute, ruling or order of any governmental or regulatory body from time to time, then such provision of this Agreement shall be controlled by the statute, ruling order.
4.7. SEVERABILITY
4.7.1. Should any of the terms and conditions of this Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable.
4.8. COPYRIGHT
4.8.1. Any systems provided by Conekt is protected by local and international copyright laws, and the Customer may not copy, give, rent or lease the system to a third party, nor may the Customer transfer his rights under this agreement to a third party without the written permission of Conekt
4.8.2. Should any other services be added to this agreement as additional schedules then Conekt Standard Terms and Conditions will apply
VARIATION OR AMENDMENT
5.1. No amendment or consensual cancellation of this Agreement or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by a duly authorized representative from both Conekt and the Customer.
5.2. No extension of time or waiver or relaxation of any provision or terms of this Agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against either parties hereto in respect of its right under this Agreement, nor shall it operate so as to preclude either of the parties thereafter from exercising its rights strictly in accordance with this Agreement.
CHARGES
6.1. The Customer is responsible for and agrees to pay to Conekt all fees and charges set out in the Services Schedule in South African currency, without deduction or set-off of any amount of whatsoever nature or for whatsoever reason.
6.2. In the event of any dispute arising as to the amount or calculation of any fee or charge which is payable by the Customer, the dispute shall be referred for determination to independent auditors. They shall act as experts and their decision shall be final and binding on Conekt and the Customers.
6.3. The Customer hereby agrees that the costs of settlement of such dispute will be for the account of the party that is in error. If there is no clear error on the part of either party then the Customer hereby agrees that such cost shall be borne equally between the two parties.
6.4. Any amount falling due for payment by the Customer to Conekt in terms of or pursuant to this Agreement which is not paid on its due date shall bear interest calculated from the due date for payment thereof until date of payment, at a rate equal to the prime overdraft rate charged by Standard Bank.
6.5. Conekt shall be entitled on 90 (ninety) day’s prior written notice to the Customer to increase the monthly fees provided that:
6.6. Conekt shall not be entitled to increase the monthly fees during the first 12 month period of this Agreement.
6.7. Conekt shall not increase the fees on more than one occasion in any 12 month period of this Agreement.
6.8. The customer may terminate the agreement as per termination process defined in this agreement
6.9. The Customer agrees to pay the amount on the invoice at the offices of Conekt (a) cash on order; or (b) if the Customer is a Credit Approved Customer, with the agreed credit period after an Invoice is issued by Conekt.
6.10.The Customer has no right to withhold payment for any reason whatsoever.
6.11.The Customer is not entitled to set off any amount due to the Customer by Conekt against this debt.
6.12.The Customer agrees that if an account is not settled in full (a) against order; or (b) within the period agreed in the case of a Credit Approved Customer; Conekt is: (i) entitled to immediately institute action against the Customer at the sole expense of the Customer; or (ii) to cancel the agreement and take possession of any goods delivered to the Customer and claim damages.
6.13.The Customer agrees that the amount due and payable to Conekt and signed on its behalf by any duly authorised person, which authority need not be proven. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
WARRANTIES
7.1. Save as expressly set out in this Agreement, Conekt does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of any Equipment and Software (as these are supplied & owned by the Customer) and all warranties which are implied or residual at common law are hereby expressly excluded.
7.2. Without limitation to the generality of clause 10.1, Conekt does not warrant or guarantee that the information (as this is supplied and maintained by the Customer) transmitted by or available to the Customers by way of the Services:
7.2.1. will be preserved or sustained in their entirety;
7.2.2. will be suitable for any purpose;
7.2.3. will be free of inaccuracies or defects or bugs or viruses of any kind;
7.2.4. and Conekt assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this case.
EXCLUSION OF LIABILITY
8.1. Conekt warrants that all contracted services shall be provided in a professional manner by trained individuals with reasonable care and skill.
8.2. Except for any deliberate act or negligence on the part of Conekt, its servants or agents, or breach by Conekt or its servants or agents of any of Conekt’s obligations under this agreement or any agreed service specification and except as otherwise expressly provided herein to the contrary, Conekt shall not be liable to The Customer for any loss or damage whatsoever (including consequential or incidental loss or damage which shall include but shall not be limited to loss of profit, business, goodwill, revenue, data or anticipated savings) or for any costs, claims or demands of any nature asserted by The Customer
8.3. Each party shall indemnify (“indemnitor”) and hold harmless the other party, (“indemnitee”) from and against any loss, expense or claim asserted by third parties for damage to third party tangible property, or for bodily injury, or both, related to the agreement or any agreed service specification to the extent such damage or injury is attributable to the negligence or willful misconduct of the indemnitor or breach of its obligations under this agreement or any agreed service specification; provided, indemnitee gives the indemnitor prompt notice of any such claim and all necessary information and assistance so that indemnitor, at its option, may defend or settle such claim, and indemnitee does not take any adverse position in connection with such claim.
8.4. Because of the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time to time, provided that Conekt provide the Customer with written notice that it will be suspending Service, providing detailed reasons for the suspension and reasonable estimation of the time that the Services will be suspended. Conekt and the Customer will agree on a time, suitable for both parties, when the Services shall be suspended, and all liability on the part of Conekt of any loss or damage (whether directly or consequential) thereby incurred or for any costs, claims, or demands of any nature arising there from, is excluded, and the provisions of clause 5.1 above shall apply mutatis mutandis to such exclusion. Should the provision of the Services be suspended by Conekt for the purpose aforementioned for a period in excess of 48 (forty eight) consecutive hours, Conekt shall give the Customer credit in an amount which represents a pro rata portion of the Customer’s basic monthly subscription fee for the month during which the said suspension occurred.
DOCUMENTATION
9.1. Any specifications, descriptive matter, drawings and other documents which may be furnished by Conekt to the Customer from time to time:
9.2. Shall remain the property of Conekt and shall be deemed to have been imparted by it in trust to the Customer for the sole use of the Customer.
9.3. All copyrights in such documents vests in Conekt.
9.4. Such documents shall be returned to Conekt on demand.
BREACH
10.1.Subject to the provisions of clause 13.2 to the contrary, if either party hereto:
10.2. breaches any of the terms or conditions of this Agreement and fails to remedy such breach or pay such amount, as the case may be, within 7 (seven) days after the receipt of written notice from the other party;
10.3. commits any act of insolvency;
10.4. endeavors to compromise generally with its creditors or does or cause anything to be done which may prejudice the other party’s rights hereunder or at all;
10.5. allows any judgment against it to remain unsettled for more than 10 (ten) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; or
10.6. is placed in liquidation or under judicial management (in either case, whether provisionally or finally) or, being an individual, his estate is sequestrated or voluntarily surrendered; the other shall have the right, without prejudice to any other right which it may have against the other, to:
10.7. be paid all money due and payable at the date of termination of this agreement or
10.8. cancel this Agreement;
10.9.In either events without prejudice to such party’s right to claim damages.
10.10. In the event of any expiration, termination or cancellation of this Agreement, provisions hereof which are intended to continue and survive shall so continue and survive.
10.11. Each party will be able to claim any costs entitled by law
INTELLECTUAL PROPERTY
11.1.All intellectual property (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service/s provided under this Agreement shall belong to Conekt, provided that any intellectual property derived, produced or developed by Conekt expressly for the Customer shall vest in the Customer. The Customer undertakes that it shall at no time, have any right, title or interest in the intellectual property and agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the equipment or software owned by Conekt, or any of its third party suppliers.
11.2.Neither party shall for the duration of this agreement and for one year thereafter employ, offer employment to or solicit any employee, sub-contractor or consultant of the other party who is or has been involved with this agreement or the services of each the partner or Conekt’s customers without such party’s prior written consent.
11.3.A penalty for the employment of any of Conekt’s resources will be levied on the Customer to the value of 6 months of the contract value charged for the specific resource.
DURATION
12.1.The provision of the Service shall endure for a period of 12 (twelve) months, commencing on and with effect from the Effective Date.
12.2.Subject to termination by Conekt Business Group or the Customer by way of 90 (ninety) days prior written notice of termination to be effective on any anniversary of the Effective Date
12.3.The duration of the Service shall automatically renew for successive periods of 1 (one) month, on anniversary should the agreement not be renewed or cancelled.
EFFECTIVE DATE
13.1.The Effective Date of this Agreement is the date when Service first commences. Should the Effective Date occur after the date of signature of this Agreement, nothing herein contained shall be construed so as to give either party the right to cancel or rescind this agreement before the Effective Date.
13.2.If at any time during the currency of this Agreement, the Customer upgrades the Service, then the Effective Date in respect of the Service as upgraded, shall be the date when the upgrade Service first commences.
SUPPORT TERMS
14.1.Conekt Customer Care environment is available during normal working hours. This team is responsible for:
14.2.Customer authentication
14.3.Logging service requests
14.4.Providing the Customer with a reference number
14.5.Providing the Customer with updates relative to their service requests
14.6.Closing the call with the Customer, once the support team deem it resolved
14.7.The Support Service shall be provided on the following basis:-
14.8.Normal Office Hours: this is deemed to be 8 am- 5 pm excluding public holidays.
14.9.After Hours: this is deemed to be any time outside of normal office hours and is calculated at double the normal office hour support rate, i.e. for every hour of after-hours support used, two hours are deducted.