1.1 The Customer agrees to be bound by these Terms and Conditions upon the procurement of the Software Licenses, Hardware and/or Services, and utilising it and/or deriving benefit from it during and after installation and implementation.
1.2. Sebata agrees to be bound by these Terms and Conditions by fully or partially installing, implementing and/or rendering support services for the functioning of the Software, Hardware and/or rendering of the Services, upon the Customer’s procurement and/or acceptance of a Quotation and/or Proposal, access and/or use of the Software, Hardware and Services.
1.3. Unless otherwise agreed in writing by Sebata, all Software Licenses, Services and/or Hardware are rendered under these Terms and Conditions. Should Sebata and the Customer enter into any further written agreements, including but not limited to, master agreements, proposals, Memorandums of Understanding, Statements of Work and/or project charters and or any another Agreement, the parties will be bound by both these Terms and Conditions and the Terms and Conditions of such other Agreement. In the event of a conflicting provision, the Terms and Conditions of the other Agreement will supercede these Terms and Conditions.
2.1 If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only a definition clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement.
2.2 In these Terms and Conditions, unless the contrary intention appears from the context:
- 2.2.1 words signifying one gender shall mean and include all genders;
- 2.2.2 words signifying the singular shall mean and include the plural and vice versa;
- 2.2.3 reference to natural persons shall mean and include reference to juristic persons and vice versa;
- 2.2.4 reference to a period of day shall mean ordinary days in the Republic of South Africa, reckoned exclusively from the first and inclusively of the last day of any specified period; provided that if the last day falls on a Saturday, Sunday or public holiday in the Republic of South Africa, it will be deemed as the next business day;
- 2.2.5 reference to the time of day shall mean the time of day within the Republic of South Africa.
2.3 For the purpose of interpretation, this Agreement shall be deemed to have been drafted on behalf of each party hereto.
2.4 The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it: the application of the eiusdem generis rule is excluded.
2.5 The words “other” or “otherwise” shall not be construed as eiusdem generis with any preceding words where a wider construction is possible.
3.1 “Business Day” means any day other than a Saturday, Sunday or public holiday officially proclaimed as such in the Republic of South Africa.
3.2 “Business Hours” shall mean 07:30 to 16:30 on a business day.
3.3 “Customer” shall mean any natural or juristic person, firm, corporation or Local Government Entity to whom Sebata or its Subsidiaries provide/d Licenses (“licensee”) Services and/or sold any Software or Hardware to.
3.4 “Confidential Information” shall mean information confidential and/ proprietary in nature, including but not limited to, trade, financial, sales, contractual, technology and management secrets, special marketing information, ideas, know-how, technical data, product or process specifications, exclusivity arrangements, designs, formulations, computer programs and concepts originated by the disclosing party, not previously published or otherwise disclosed to the general public, not previously available to the receiving party without restriction, not normally furnished to others without compensation, and which the disclosing party desires to protect against unrestricted disclosure or competitive use, and which is furnished in writing pursuant to the rendering of the Services, Software and/or Hardware.
3.5 “Hardware” shall mean the physical equipment, goods, materials or items required by the Customer in connection with the provision of the Services and/or Software.
3.6 “Intellectual Property” shall mean all current and future intellectual property rights of whatever nature in relation to or attaching to the Software, Services and/or Hardware, including, but not limited to, all vested, contingent and future patents, copyrights, data, designs, source codes, inventions, processes, know-how or techniques incorporated and / or embodied in the Software and / or Hardware, trademarks, service marks and other rights of a similar character, whether or not the same are registered or capable of registration.
3.7 “License” shall mean the non-transferable and non-exclusive rights to use the Software granted to the Customer by Sebata in accordance with these Terms and Conditions. Any rights not expressly granted in the License are reserved for Sebata.
3.8 “Parties” shall mean Sebata and the Customer.
3.9 “Sebata” shall mean the Licensor of the Software, the Service Provider for rendering of the Services and Supplier for the Software and Hardware.
3.10 “Refinement” with respect to the Software, means any form of improvement, which in the opinion of SEBATA might have a positive influence on the performance or functionality of the Software. The resolution of individual CUSTOMER specific problems or preferences shall not constitute a refinement.
3.11 “Services” shall mean any delivery, installation, configuration, consultation, support or other professional services as rendered by Sebata.
3.12 “Software” shall mean any and all computer programs and not limited to SebataEMS/FMS which forms part of Sebata’s intellectual property.
3.13 “Upgrade” shall mean a minor or major logical change or improvement of the entire Software or part thereof, either in light of or in accordance with changes in technology, legislation, policies, business processes and/or best practice.
Upgrades shall be logically differentiated, structured, developed and implemented at the instance of Sebata, in line with Sebata’s system development life cycle (“SDLC”) and commitment to innovation and continuous improvement. Upgrades shall be differentiated as either “minor” or “major” and shall be indicated with identifiable version numbers. Upgrades are principally intended to be for the benefit of the Customer.
4.1 Sebata reserves the right to amend any quoted amounts, by providing reasonable written notice to the Customer, in the event of:
- 4.1.1 An increase from the Manufacturer and/or Service Provider; and
- 4.1.2 Exchange rate fluctuations.
4.2 The fees payable by the Customer to Sebata in respect of the Software Licenses, Services, Support and/or Hardware and unless stated otherwise, shall be exclusive of:
- 4.2.1 any other taxes and duties which are levied or charged by any revenue authority (including the South African Revenue Services), all of which shall be for the account of the Customer;
- 4.2.2 upgrades, refinements any other charges, fees and costs (including but not limited to freight, delivery and insurance), all of which shall be for the account of the Customer;
- 4.2.3 Subsistence, Travel and Accommodation Fees.
4.3 Payment of invoices generated by Sebata will be payable:
- 4.3.1 For Hardware on delivery; and
- 4.3.2 For Software Licenses and Services rendered within Thirty (30) days from date of invoice.
4.4 All quotations and/or proposals supplied by Sebata are valid for a period of Thirty (30) days and may be subject to the availability of resources, equipment and transport.
4.5 Interest, monthly in arrears, at the prevailing prime interest rate plus 4 (four) percent, shall be levied on accounts owing by the Customer for any period longer than Thirty (30) days.
4.6 Any failure by the Customer to make any payment on due date shall entitle Sebata, inter alia, to refuse to execute any of the Services and/or delivery and execution of any Hardware with the Customer, to refuse to make further deliveries of the Hardware, to immediately suspend and/or terminate the provision of any and/or all Software Licenses, Hardware and Services until such time as all arrears have been paid in full, including any interest due and/or demand the immediate return of all rented Hardware or Hardware owed by Sebata which is in the Customers possession. Sebata shall further be entitled to require the Customer to make payments in advance thereafter for any further Hardware to be delivered, Software Licenses to be granted and/or Services to be rendered.
4.7 The Customer shall pay all undisputed prices, fees and charges when they become payable and shall not withhold payment under any circumstances. In the event the Customer disputes a portion of an invoice, the Customer shall pay the undisputed invoices and/or parts of invoices and provide Sebata with details on the disputed amount/invoice within 5 (five) Business Days from date of invoice. Sebata reserves the right to credit and re-in voice undisputed amounts which will become payable.
4.8 The Customer is not entitled to withhold payment or make any deduction from the quoted price of the Hardware, Software Licences or Services in respect of any set off or counterclaim.
4.9 The prices, fees and charges shall be payable to Sebata by the Customer at Sebata’s bankers, free of exchange, set-off and any other deduction, and payment shall not be affected until the funds have been cleared to and received by Sebata’s bankers whose details are as follows:
BANK: BIDVEST BANK
NAME: Sebata Municipal Solutions (Pty) Ltd
ACCOUNT TYPE: Business Account
ACCOUNT NUMBER: 1294 3857 401
BRANCH CODE: 462 005
4.10 No orders may be withdrawn or cancelled by the Customer, nor may they be deferred, unless Sebata shall have previously approved such withdrawal, cancellation or deferral in writing and Sebata shall have been paid a withdrawal, cancellation or deferral charge of a reasonable amount determined by Sebata, at its sole discretion, which amount shall not exceed its cost-plus anticipated profit. In the event that the Customer shall request changes to any order that has been submitted to Sebata, the Customer shall be responsible for all charges and expenses reasonably incurred by Sebata with respect to such changes.
4.11 Sebata shall remain the sole owner of delivered Hardware, and title of the Hardware shall not pass to the Customer, until such time as Sebata receives payment in full of the entire purchase price for such Hardware, including transport costs and taxes and Sebata reserves the right to invoice separate parts of a quote separately. Sebata reserves the right to refrain from execution of further components of a quote or order, or of any subsequent quote or order, or to terminate a delivery, until such time as any outstanding issued invoices shall have been paid in full.
5.1 The Customer shall inspect all supplied Hardware and verify conformity with the accepted Quotation and/or Proposal promptly upon delivery and before use of such Hardware. Hardware cannot be returned without Sebata’s prior written authorization. Hardware, Software and Services shall be deemed to have been accepted in the event no written notice specifying in detail any shortages, damages or other claims has been received by Sebata within Five (5) days following delivery of the Hardware, Software and/or rendering of the Services.
6.1 Neither Party shall use or divulge to any person or office, any Confidential Information disclosed to it by the other Party in connection with the Software, Services and/or hardware in any form or manner whatsoever, other than appropriate representatives, officials or employees of the Parties to which proposals or reports must be submitted in connection with the subject matter of these Terms.
6.2 All copyright, design right and other intellectual property in any design, specification, process, method of working or other, information relating to the Software, Hardware or Services (other than that provided by the Customer to Sebata) shall vest for all time in Sebata.
6.3 The Customer shall not purport to do anything or assist any other person in doing anything which may or could impair, prejudice or interfere with Sebata’s vested rights, title and interest in and pertaining to the proprietary confidential information.
6.4 The standard of care for protecting such information, imposed on the Customer receiving such information, will be that degree or standard of care the receiving Customer uses to prevent disclosure, publication or dissemination of its own proprietary or confidential information.
6.5 The Customer has no proprietary right in the Software and/or Hardware or any part thereof and/or any of the enhancements, fixes and changes or parts thereof, irrespective of the origin of the said enhancements, fixes and/or changes. It is further recorded that all documentation related to the Software and/or Hardware provided to the Customer by Sebata will remain the property of Sebata.
7.1 Sebata will have no liability whatsoever to the Customer or any third party for any direct, indirect, incidental, consequential, reliance, special or punitive damages (including without limitation damages for harm to business, loss of sales, loss of savings, loss of profits (anticipated or actual), loss of use, downtime, injury to persons or damage to property and/or claims of third parties), regardless of the form of action whether in contract, warranty, strict liability, vicarious liability and/or in delict (including without limitation, negligence of any kind, whether active or passive) suffered or caused as a result of or arising out of any act or omission (whether negligent or otherwise) by Sebata, its employees, its affiliates, or agents or any other person in any way related to or arising out of the use of the Licence, Software, rendering of the Services and supply/installation of the Hardware.
8.1 Sebata neither makes nor gives any warranties or representations, whether express or implied, relating to the Licences, Software, Services and/or performance of the Hardware, or as to the upgrades, refinements, enhancements and/or support to be rendered to the Customer or any other person.
8.2 The Customer undertakes to protect the Hardware, Licences and Software and/or documentation related thereto against unauthorized use, tampering and/or reproduction.
8.3 The Customer undertakes not to copy, reproduce or distribute the Licences, Software and/or Hardware and understands that such copying, reproduction or distribution of the Licences, Software and/or Hardware by the Customer, any employee and/or any agent appointed by the Customer constitutes a material breach of these Terms.
9.1 Should any dispute of whatsoever nature arise between the parties out of or pursuant to the rendering of the Services, Software and/or Hardware, or should a deadlock occur, either party shall be entitled, by written notice to the other party, to refer the dispute to a committee comprising two (2) members appointed by each party who will resolve the dispute within fourteen (14) days of receipt of the referral.
9.2 If the committee is unable to resolve the dispute, either Party may be entitled to refer the dispute to arbitration to be resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa (AFSA) or its successors in title by an arbitrator or arbitrators appointed by AFSA. The arbitration referred to in this clause shall be held in English in Johannesburg, South Africa, in accordance with AFSA Rules and Regulations, with a view to it being completed within twenty-one (21) days of it being referred to arbitration. The parties hereto agree that any decision made by the arbitrators in accordance with the provisions of this clause shall be final and binding on the parties and may be made an order of court of competent jurisdiction.
9.3 Nothing herein contained shall be deemed to prevent or prohibit a party to the arbitration from applying to the appropriate court for urgent relief.
10.1 Should the Customer breach any provision of these Terms and Conditions (irrespective of the materiality of such breach or provision) and fail to remedy such breach within Seven (7) days after receiving written notice requiring such remedy from Sebata; then
10.2 Sebata shall be entitled, without prejudice to its other rights in law, to immediately terminate the services, cancel the agreement, claim damages, claim payment for all amounts outstanding, claim the immediate return of the Hardware and/ or to claim immediate specific performance of all of the defaulting party’s obligations.
11.1 In the event of Sebata and/or its duly authorised agents having to enforce any of its rights in terms of these Terms and Conditions due to the Customer’s breach, the Customer shall be liable for the costs incurred by Sebata and/or its duly authorised agents as on the scale between attorney and own client including collection commission and tracing costs.
12.1 If any provision of these Terms and Conditions is held by any court to be invalid or unenforceable, such provision shall be deemed to be modified or deleted, but only to the extent necessary to enable the remaining provisions of the Terms and Conditions to be valid and enforceable.
13.1 The Customer shall not have any claim of any nature whatsoever against Sebata for failure to carry out any of its obligations when rendering Services and/or Hardware as a result of vis major, including, but without being limited to, any strike, lock-out, shortage of labour or materials, delays in transport, accidents of any kind, riot, political or civil disturbances, the elements, any act of any State or Government or any other authority or any other cause whatever beyond the control of Sebata.
14.1 These Terms and Conditions shall be deemed to have been made under and shall be construed and interpreted in accordance with the laws of South Africa. The Customer and Sebata hereby agree to submit to the jurisdiction of the High Court of South Africa, Gauteng Division, and such courts shall have exclusive jurisdiction and venue to adjudicate the rights and obligations of the parties relating in any manner hereto. In the event of litigation relating to the subject matter hereto, the substantially prevailing party shall be entitled to recover from the non-prevailing party all reasonable attorney’s fees and costs relating to such litigation.
15.1 No indulgence which Sebata may grant to the Customer shall constitute a waiver of any of the rights of Sebata, who shall not thereby be precluded from exercising any rights against the Customer which might have arisen in the past or which might arise in the future.
16.1 Upon Sebata supplying the Hardware, rendering the Services and/or granting Licenses to the Software, the Customer acknowledges receipt and acceptance of these Terms and Conditions.