Terms and Conditions
“O2Africa” referenced throughout the proposal and terms and conditions refers to:
- O2AFRICA (Pty) Ltd. with registration number (2022/531273/07)
And
“The Client” refers to:
Client Name
ORDER OF PRECEDENCE
Notwithstanding anything to the contrary contained in the Client’s enquiry, specification, acceptance, order or other documentation or any discussions to the contrary, the terms and conditions contained herein (“terms and conditions”) as read together with the proposal to which these terms and conditions are attached (“Proposal”) shall constitute the sole record of the agreement between O2Africa and the Client, provided that in the event of any conflict between the terms of the Proposal and these terms and conditions, the provisions of these terms and conditions shall prevail.
Pricing Provisions
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- All prices exclude VAT unless otherwise indicated.
- Proposals are valid for 30 days only from date of issue.
- Any alterations to the quantity or composition from those terms defined herein will render the pricing offered as invalid. A new proposal with differing terms would then need to be developed and presented for the Client’s review.
- All services required or goods ordered by the Client shall be prepared on an order form and sent by e-mail or hand delivered to O2Africa. On receipt of such order form, and countersignature thereof by O2Africa, then such order shall be binding on the Client.
Payment Terms: payment of the invoices shall be made by the Client to the Company within 7 (seven) days of the date of issue of a valid invoice by the O2Africa.
Warranties:
- O2Africa hereby warrants and represents to the Client that the [Product] shall be fit for purposes and manufactured by experienced, qualified and trained personnel with all due skill, care and diligence.
- O2Africa undertakes to repair or, at its option, replace parts thereof which fail (fair wear and tear accepted) as a result of a defect in O2Africa ‘s materials or workmanship, arising within 12 (twelve) months of purchase or within 12 (twelve) months of the Client having accepted delivery of the Goods (or within such other period as may be specified by O2Africa having regard to the nature and properties of the Goods concerned), and occurring under normal conditions and subject to proper storage, use and maintenance, provided that:
- the Client notifies O2Africa within 10 (ten) days of the defect having occurred, in writing with sufficient details of any alleged defects or malfunction; and
- the Client gives O2Africa the opportunity to inspect the Goods and, if O2Africa so requests, the Goods are returned promptly, carriage paid by O2Africa (and details of carriage notified in writing to O2Africa in advance); and the Goods have not been repaired, tampered with, modified or altered by anyone other than O2Africa; and
- the Client provides proper proof of purchase for the relevant Goods.
- In the event of O2Africa carrying out any repairs which are covered under a current warranty, or which have been requested by the Client, O2Africa will extend the warranty for a period of 3 (three) months for the item repaired, which period runs from the date of the replacement or repair as the case may be.
GENERAL PARTY WARRANTIES
Each Party hereby warrants and represents to the other that:
- it is a valid and subsisting company or entity incorporated pursuant to the laws of its country of incorporation;
- it has all requisite power and authority to execute and implement this Agreement and has all necessary power and authority to perform its obligations as set out in this Agreement;
- the entering into of this Agreement will not result in the violation of any of the terms and provisions of any agreement, written or oral, to which the relevant Party may be a party; and
- the execution and implementation of this Agreement has been duly authorised by all necessary action on the part of the relevant Party and this Agreement, when duly executed and implemented by the Parties, will constitute a legal and binding obligation of the Parties enforceable in accordance with its terms.
Limitation of Liability
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- O2Africa will not, under any circumstances, be liable to the Client for any costs, claims, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts which the Client may sustain or suffer (or with which the Client may be threatened) as the result of, whether directly or indirectly, any act or omission in the course of or in connection with the implementation of this Agreement or in the course of the discharge or exercise by the Parties or their employees, agents, professional advisors or delegates of their obligations or rights in terms of this Agreement or the termination of this Agreement for any reason.
- Further to the above, O2Africa shall not be liable for any direct or indirect loss or damage of any kind caused by the following events, such list being an open list and which shall not be construed as limiting the application of clause 5.a. above:
- any misuse of the Product resulting in giving access to somebody erroneously who then proceeds to commit any crime;
- any crimes being committed on the site any financial losses due to the product failing.
- Notwithstanding the above, and for the avoidance of doubt, in no event will the total collective liability of O2Africa under this Agreement exceed the aggregate fees paid or owed by the Client under this Agreement during the 12 (twelve) month period preceding the date on which the claim arose.
Indemnity
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- The Client hereby indemnifies and holds harmless O2Africa (including its shareholders, directors, advisors and employees, in whose favour this constitutes a stipulation capable of acceptance in writing at any time) against any claim by any third party for any costs, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts arising, whether directly or indirectly, from a breach of this Agreement by the Client.
INTELLECTUAL PROPERTY
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- O2Africa’s trademarks and names shall not be used otherwise than as applied by O2Africa to O2Africa’s Equipment or Goods and Services.
- No right or license is granted under this Agreement to the Client under any patent, trademark, copyright, registered design or other intellectual property right, except the right to use or re-sell the Gas and/or Goods as permitted under this Agreement. No warranty is given as to whether that use, or re-sale will infringe the rights of any third party.
- Any know-how, information or documents supplied at any time by O2Africa to the Client shall be treated as confidential by the Client and shall not be disclosed to any third party or used for any purpose other than for the purpose of this Agreement without the prior written consent of O2Africa, unless and until the same is public knowledge other than through default of the Client or comes into the Client possession bona fide from a third party.
- O2Africa retains all intellectual property rights in its drawings, specifications, data and all other information and documents prepared by O2Africa for the Client in whatever medium.
Confidentiality:
Both Parties agree to
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- hold all confidential information of the other party in strict confidence and will not, nor permit any other person to, copy, reproduce, sell assign, license, market, transfer or otherwise dispose of, give and/or disclose the confidential information to any unauthorised person;
- take all reasonable steps to minimise the risk of disclosure of the confidential information to unauthorised persons, and to ensure the proper and secure storage of any such confidential information;
- not, during the period of this agreement or thereafter, use for its own benefit or for the benefit of any other person or divulge or communicate to any person or persons, any of the other party’s secrets or any other confidential information which it may receive or obtain in relation to the other party’s affairs or its Clients or suppliers or to the working of any process or invention or to any marketing technique which is carried on or used by that party.
DISPUTE RESOLUTION AND ARBITRATION
- Should any dispute, disagreement or claim arise between the Parties (“the Dispute”) concerning the Proposal or these terms and conditions or the interpretation of the Proposal or these terms and conditions or its implementation or termination, the parties’ respective authorised representatives shall meet to attempt to resolve the Dispute within 5 (Five) days of receipt of written invitation by either party.
- Should the procedure as described in clauses 9.a. fail to remedy such Dispute, the parties shall refer the matter to their respective Managing Directors, who shall attempt to resolve the Dispute within 5 (Five) days of referral of the Dispute to them.
- In the event a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties hereby agree first to attempt in good faith to settle the dispute by mediation administered by an attorney with sufficient experience in the subject matter of the dispute, such attorney shall be appointed by the parties together whose costs shall be shared equally, before resorting arbitration in terms of clause 9.d.
- Should the procedure as described in clauses a, 9.b. and9.c. fail to remedy such Dispute, the parties shall refer the Dispute to arbitration, to be decided before a single arbitrator in the manner set out in this clause.
- The arbitrator shall be if the Dispute is:
primarily an accounting matter, a practising auditor of not less than 10 (Ten) years standing, as may be agreed upon between the parties; or
primarily a legal matter or any other matter, a practising advocate of not less than 10 (Ten) years standing, as may be agreed upon between the parties. - If agreement cannot be reached on whether the Dispute falls under clause e.i or e.iiii or upon a particular arbitrator within 3 (Three) business days after the arbitration has been demanded, the chairman for the time being of the Cape Town Bar Council shall nominate the arbitrator in terms of the relevant sub-clause, within 5 (Five) Business Days after the parties have failed to agree, so that arbitration can be held and concluded as soon as possible.
- The arbitration shall be held in accordance with the formalities and procedures settled by the arbitrator, which shall be in an informal and summary manner, that is, it shall not be necessary to observe or carry out either the usual formalities or procedure or the strict rules of evidence.
- The arbitrator shall be entitled to investigate or cause to be investigated any matter, fact or thing which he considers necessary in connection with any matter referred to him for decision and to make such award, including in relation to the costs of arbitration, as he in his sole discretion may deem fit and appropriate. The arbitrator’s decision shall be final and binding.
- This clause shall not preclude the parties from applying to the appropriate division of the High Court for interim or urgent relief which requires such application.
BREACH
If either Party breaches any material provision or term of this Agreement (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fails to remedy such breach within 14 (fourteen) days of receipt of written notice requiring it to do so, then the aggrieved Party will be entitled without notice, in addition to any other remedy available to it at law or under this Agreement, including obtaining an interdict, to cancel this Agreement or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved Party’s right to claim damages.
NO CONSEQUENTIAL LOSSES
Under no circumstances whatsoever shall either Party be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss or damage was actually foreseen or reasonably foreseeable), including but not limited to any loss of commercial opportunities or loss of profits, and whether as a result of negligent (including grossly negligent) acts or omissions of such Party or its affiliates, servants, agents or contractors or other persons for whose actions such Party may otherwise be liable in law.
RELATIONSHIP BETWEEN PARTIES
The Parties agree that:
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- neither Party is a partner or agent of the other Party;
- neither Party will have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party; and
- this Agreement will not be interpreted or construed to create an association, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
FORCE MAJEURE
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- Except for the obligation to pay monies due and owing, neither Party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labour disputes, actions of governmental entities (including but not limited to delay caused by customs regulations or a change in customs regulations), riots, war, terrorism, fire, epidemics or other circumstances beyond its reasonable control.
- The obligations and rights of the defaulting Party shall be extended for a period equal to the period during which such event prevented such Party’s performance, provided that if such period exceeds 60 (sixty) days, then either Party shall be entitled to terminate this Agreement immediately on written notice while the Party’s performance continues to be prevented.
GENERAL
- This Agreement shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
- No waiver or abandonment by a party of any of its rights in terms hereof shall be binding on that party, unless such waiver of abandonment is in writing and signed by the waiving party.
- No addition to, variation, modification or consensual cancellation of the Proposal shall be of any force or effect unless in writing and signed by or on behalf of the parties.
- The Client shall not be entitled to cede, assign or transfer all or any of its rights and/or obligations in terms of the Proposal, without the prior written consent of O2Africa.
- O2Africa reserves the right to subcontract services to a third-party organisation to provide services to the Client. Any such subcontract shall not relieve the O2Africa of any of its obligations under this Agreement.
- Counterparts: this Agreement may be executed in several counterparts, each of which shall together constitute one and the same instrument.
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- If any provision hereof is held to be illegal, invalid or unenforceable for any reason, such provision shall be deemed to be pro non scrip to, but without affecting, impairing or invalidation any of the remaining provisions hereof which shall continue to be of full force and effect.
- By accepting and signing the Proposal, the parties acknowledge that they have read all the terms and conditions hereof and that they are fully acquainted with the nature and purpose hereof.