1. AGREEMENT
1.1. The “Company” shall mean Energy Partners Refrigeration (Pty) Ltd, and the “Client” shall mean any client or customer of the Company, to which these terms and conditions (“T&C’s”) apply.
1.2. These T&C’s apply to all goods, products and/or equipment sold, installed and/or commissioned for the Client by the Company (“Goods”), as well as any services (including, but not limited to any installation, maintenance, consulting, performance optimization or related services) performed for the Client by the Company (“Services”), from time to time. To the extent that a written agreement has been concluded between the Company and the Client in respect of the Goods and/or Services, the provisions of the written agreement will prevail. To the extent that no written agreement exists or such written agreement is silent on any aspect, the provisions of the T&C’s shall apply.
1.3. The term “Commercial Document” shall mean any quotation, pro forma invoice, tax invoice, purchase order confirmation, statement of work or similar document issued by the Company to the Client, to which these T&C’s are annexed to, incorporated by reference in, or made available electronically and referred to in, the relevant Commercial Document.
1.4. The Client’s signature of any Commercial Document, acceptance of any quotation or purchase order issued by the Company, or payment of any amount due to the Company or instructing the Company to commence performance, shall constitute full and binding acceptance of these T&C’s, whether or not expressly referred to in the Commercial Document. The Client acknowledges that it has read and understood these T&C’s and agrees to be bound thereby.
1.5. All Goods and Services sold, installed, maintained and/or performed by the Company shall be deemed to be made subject to these T&C’s.
1.6. No amendments to these T&C’s shall be of any force or effect, unless reduced to writing and signed by the Company and the Client.
1.7. These T&C’s shall be subject to the provisions of the Consumer Protection Act 68 of 2008 (“CPA”), to the extent that the CPA is applicable. Where the CPA applies to the Client or to any transaction contemplated in these T&C’s, any provision of these T&C’s which is inconsistent with the CPA shall be interpreted in a manner that gives effect to the CPA and shall not be construed so as to limit any rights afforded to the Client under the CPA and any provision that is prohibited or required to be qualified under the CPA shall be read accordingly.
2. PAYMENT TERMS
2.1. The purchase price of the Goods and Services quoted are exclusive of VAT and any other export taxes or levies that may be applicable.
2.2. Unless otherwise specified in the relevant Commercial Document, a quotation will remain valid for a period of 30 (thirty) days from the date of the quotation.
2.3. In respect of Services rendered by the Company, unless otherwise specified in the quotation or in writing between the parties, payment shall be due and payable strictly within 30 (thirty) days of the date of the Commercial Document reflecting such Services.
2.4. Unless otherwise specified in the relevant Commercial Document, an initial deposit of 30% (thirty percent) is payable upon acceptance for the Company to order and reserve the Goods on the Client’s behalf. The Company shall not be held responsible for any delays occasioned by the Client’s failure to pay the deposit timeously and the Client hereby indemnifies the Company against any losses or claims as a result of such delay.
2.5. Unless otherwise specified in the relevant Commercial Document, the remaining balance of the purchase price shall be paid as follows:
2.5.1. 60% (sixty percent) upon delivery; and
2.5.2. 10% (ten percent) on commissioning of the Goods and Services.
2.6. The Company may withhold delivery of the Goods and Services and/or the installations and commissioning thereof until payment due in terms of clauses 2.4 and 2.5 above have been received in full, except to the extent that Goods and Services were purchased on credit as provided for in 2.9.
2.7. Payment shall be made:
2.7.1. without set-off or deduction;
2.7.2. free of any bank charges;
2.7.3. in South African currency;
2.7.4. by way of Electronic Funds Transfer into the nominated bank account as stated on the Company’s invoice.
2.8. The Client shall not withhold payment except where permitted in terms of applicable law.
2.9. Should the Client wish to purchase the Goods and Services on credit, the Client shall make an application to the Company, which application the Company may approve or reject. Should the Company accept the application, the parties shall enter into a credit agreement which will be in writing and will make provision for the delivery and installation of the Goods.
2.10. The Company shall be entitled to charge interest on any outstanding amount from time to time, at a rate of 5% (five percent) per month or at the maximum rate permitted by applicable law, whichever is lower, from the due date until the date of actual payment.
2.11. The Company undertakes to inform the Client, with supporting documentation, of any increase or price adjustment in the purchase price, if any.
3. DELIVERY
3.1. The Company requires approximately 2 (two) to 4 (four) weeks to procure all Goods from the date of placing the order and receiving a deposit, as per clause 2.4. Shipping time shall be as specified in the relevant Commercial Document.
3.2. Any delivery dates, whether expressly specified, or otherwise, are approximate only and may change due to circumstances beyond the reasonable control of the Company.
3.3. The Company shall make every effort to effect delivery timeously but undertakes to inform the Client of any undue delay in writing as soon as it becomes practically possible to do so.
3.4. The Company shall be entitled, in its discretion, to effect delivery of items on different dates on condition that such amended dates have been communicated to the Client.
3.5. The Client shall be liable for any costs arising from the Client’s default or incorrect instructions if the Company is unable to effect delivery of any Goods on the delivery date as a result thereof or if delivery is delayed due to the fault of the Client or its representative.
3.6. Signature by the Client or their representative on the Company’s delivery note shall constitute acknowledgment and acceptance that the Goods listed in the delivery note have been delivered in full and to the Client’s satisfaction, subject to any defects or shortages noted in writing at the time of delivery.
4. JOB ACCEPTANCE
4.1. Upon completion of the Services and/or installation of Goods, the Company shall notify the Client in writing (or via email) that the work is ready for inspection.
4.2. The Client shall inspect and either accept or reject the work in writing within 5 (five) Business Days of such notification. Any rejection must set out the reasonable grounds for rejection in sufficient detail.
4.3. If the Client fails to provide written acceptance or rejection within the stated period, the Services and/or Goods shall be deemed to have been accepted as satisfactory and in accordance with the Commercial Document.
4.4. Where the Client provides written acceptance or takes into beneficial use the Goods or Services, such acceptance shall constitute full and final acknowledgment of completion, save for latent defects and applicable warranties.
5. WARRANTIES AND GUARANTIES OF MANUFACTURER AND COMPANY
5.1. Subject to the provisions of the CPA, where applicable, the Company does not manufacture the Goods, and, as a result, does not provide warranties in this regard. The Client acknowledges and agrees that the Company does not provide warranties in relation to the Goods other than as expressly set out in these T&C’s or to the extent required by applicable law. However, all Goods are sold with the transfer of warranties of the original manufacturers of the components, subject to correct operation of the Goods and relevant plant and regular servicing by a competent person. Nothing in these T&C’s shall be interpreted as limiting any statutory warranty that may apply in terms of the CPA.
5.2. Any warranties or guarantees relating to the Goods shall be governed solely by the warranties provided by the respective original manufacturers of the components, and the Company shall have no liability or responsibility for such warranties.
5.3. The Company shall reasonably cooperate with the Client in facilitating any warranty claims against the original manufacturers of the components in accordance with the applicable terms and conditions provided by the original manufacturers of the components. However, the Company shall not be liable for the manufacturer’s failure to fulfil their warranty obligations.
5.4. All newly installed Goods and Services provided to the Client, carry a 6 (six) month workmanship warranty in respect of workmanship relating to the installation of the Goods components. The Company warrants that workmanship is of good quality and standard. Should the Client rely on defective workmanship, the Client is entitled to choose between a repair, refund or replacement, unless:
5.4.1. the Client has altered the Goods or Services; or
5.4.2. the Client subjected it to abuse or repair by any party that is not considered a competent person or any other use that it was not manufactured for (the warranty also excludes fair wear and tear of the Goods and Services).
5.5. The Company’s warranty, as per clause 5.4 above, is subject to the Client operating and monitoring the Goods in accordance with any applicable operating instructions and promptly reporting any defects or required adjustments to the Company.
5.6. It is specifically recorded that the Company does not provide the following guarantees:
5.6.1. damage to premises and Goods and Services due to the Client’s or any of its staff, employees, contractors and/or directors’ negligence;
5.6.2. electrical and/or electronic and all subsequent mechanical failure/s due to fluctuations in the power supplies or loadshedding, lightening or phase failure;
5.6.3. insurance of equipment once the responsibility to insure the risk in the Goods and Services transfers to the Client on delivery to its premises; and
5.6.4. guarantee on any consumables.
6. CLIENT’S WARRANTIES
6.1. The Client warrants that the signatory to the T&C’s has been duly authorised to contract on its behalf.
6.2. The Client furthermore warrants that it and its authorised representative has read and understood each provision of these T&C’s and accepts them as binding.
6.3. If the signatory signs in a representative and/or personal capacity, the signatory hereto hereby binds himself/herself, jointly and severally, as surety for and co-principal debtor in solidum with the Client, for the due and punctual fulfilment and compliance by the Client of all its obligations to the Company in terms of these T&C’s and hereby renounces the benefits of excussion and division and all other legal benefits which may otherwise have been capable of being used as a defence to an action by the Company against the Client and the signatory hereby acknowledges that he/she is fully aware and acquainted with the effect of such renunciation and acknowledges that all admissions or acknowledgements of liability by and judgments against the Client shall be binding on him/her.
7. DEFAULT
7.1. Should any amount payable by the Client to the Company not be paid, as per clauses 2.4 and 2.5 or as per the credit agreement contemplated in clause 2.9, or should the Client otherwise breach or fail to comply with any term or condition of these T&C’s, the Company shall, without prejudice to any claims accrued to it under these T&C’s and to any other rights or remedies, including any claim for damages, be entitled within the Company’s absolute discretion to:
7.1.1. suspend performance of the Company’s obligations until such breach is rectified and/or all such monies have been paid; and/or
7.1.2. to recover possession of and remove any Goods in respect of which ownership has not passed to the Client; and/or
7.1.3. terminate the operation of the Goods supplied and/or rendering of Services, where lawful, reasonably necessary, and safe to do so; and/or
7.1.4. cancel these T&C’s.
7.2. The Client shall not be entitled to cancel these T&C’s by virtue of any breach by the Company unless it is a breach of a material term hereof and the Company has failed to rectify such breach within 21 (twenty-one) days after receiving written notice from the Client requiring it to do so.
7.3. A certificate signed by any director, manager, or authorised representative of the Company, showing the amount due and owing by the Client at any given time, shall be prima facie evidence of the amount due by the Client and such certificate shall be sufficient for purposes of judgment, provisional sentence or other legal proceedings.
7.4. Any printout of computer evidence tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence.
8. FORCE MAJEURE
8.1. No party is liable for any failure to perform its obligations under these T&C’s if the failure or delay is due to anything beyond that party’s reasonable control, including but not limited to the events listed in clause 8.2. If that failure occurs, the affected party may immediately suspend performance or terminate these T&C’s with immediate effect by giving notice to the other party. This clause does not apply to any obligation to pay any outstanding amount in accordance with these T&C’s.
8.2. General Force Majeure Events includes, but is not limited to:
8.2.1. Acts of God, including but not limited to floods, droughts, earthquakes, storms, cyclones, fires, lightning strikes, and other extreme weather conditions;
8.2.2. War, invasion, acts of foreign enemies, hostilities, civil war, rebellion, revolution, insurrection, terrorism, or civil commotion;
8.2.3. Strikes, lockouts, labour disputes, or industrial action (whether involving the Company’s employees or third parties);
8.2.4. Government action, including changes in law, regulations, policies, or the imposition of sanctions, embargoes, import/export restrictions, licensing requirements, pandemics, epidemics, public health emergencies, cyber-attacks, supply chain disruptions, and any other event beyond the reasonable control of a party.
9. RISK AND OWNERSHIP
9.1. All risks in respect of the Goods shall pass to the Client upon delivery thereof. Ownership in the Goods shall remain vested in the Company until such Goods have been paid for in full.
9.2. The Company shall, in its sole discretion, be entitled to take possession of and remove from the Client’s premises or from any premises at which the Goods are located any such Goods which have not been paid for and in respect of which payment is overdue.
9.3. Should the Client at any time be sequestrated or liquidated (whichever is applicable), whether provisionally or finally, any Goods delivered by the Company to the Client and in respect of which payment has not been made in full at the date of winding up or sequestration (whether payment in respect thereof be due or not) shall immediately be returned to and recoverable by the Company and the agreement pursuant to which such Goods were sold shall be deemed to have been cancelled in respect of the Goods so returned or recovered.
10. INSURANCE
The Client is solely responsible for insuring all Goods on delivery.
11. IMPORTANT NOTICE IN TERMS OF SECTION 49 OF THE CPA
11.1. The Client’s attention is specifically drawn to the provisions of these T&C’s which limit the risk or liability of the Company, constitute an assumption of risk by the Client, or impose an indemnity on the Client.
11.2. These provisions include, but are not limited to, the clauses relating to:
11.2.1. Warranties and guaranties of manufacturer and Company;
11.2.2. Risk and Ownership;
11.2.3. Limited Liability; and
11.2.4. Recovery/removal of unpaid Goods.
11.3. By accepting these T&C’s, the Client acknowledges that it has read and understood these provisions and accepts the risks, limitations of liability and indemnities contained therein.
12. LIMITED LIABILITY
12.1. Subject to applicable law, the Company shall not be liable for any indirect, consequential, or special losses whatsoever and/or from any losses to the Client and/or for any injuries or death of the personnel of the Client howsoever arising. The Company shall not be liable for any losses arising from its gross negligence.
12.2. The Client acknowledges that the Company is not the manufacturer of the Goods and accordingly indemnifies and holds the Company harmless against any claims that may be brought against the Company by any person in consequence of such Goods and Services being defective in any manner and causing any damage whatsoever, whether through accident or negligence, gross negligence, or any other cause.
12.3. The Company’s liability to the Client for direct damages from any cause whatsoever shall in any event be limited to the replacement or re-performance of the relevant Goods or Services supplied under the relevant Commercial Document.
12.4. The Client indemnifies the Company completely against any damage whatsoever relating to the removal, as per clause 7.1.2 and 9.2, of repossessed Goods, and against all third-party claims arising from the Client’s use or misuse of Goods or Services, including any regulatory fines or penalties imposed on the Company as a result of the Client’s actions.
12.5. Unless expressly agreed in writing, the Company shall not be responsible for dismantling, disconnecting, or removing any existing or replaced equipment, materials, or waste from the Client’s premises. Any such removal, if requested by the Client, shall be separately quoted and invoiced as an Ad hoc Service.
13. AD HOC SERVICES
13.1. Any services requested by the Client that fall outside the agreed-upon scope in the quotation shall be considered “Ad hoc” services. Ad hoc services are defined as additional services not originally included in the quotation or scope of work.
13.2. For Ad hoc services, the Company shall provide a separate quotation detailing the scope, deliverables, and associated costs. The Client acknowledges that these T&C’s, as outlined in this agreement, shall apply to all Ad hoc services provided by the Company.
13.3. If the Client declines the quote for the Ad hoc services or fails to respond within the specified acceptance period, the Company shall not be obligated to provide the requested Ad hoc services.
14. REACTIVE CALL OUTS
14.1. The Client acknowledges that certain Services, including emergency maintenance, breakdown response, or fault rectification (“Reactive Call Outs”), are time-sensitive and subject to availability of personnel and resources.
14.2. Reactive Call Outs shall be charged at the Company’s prevailing rates (including any applicable overtime, after-hours, weekend, or public holiday rates) as specified in the relevant Commercial Document or otherwise notified in writing.
14.3. The Company shall use its reasonable endeavours to attend to Reactive Call Outs promptly. However, the Company shall not be liable for any loss, delay, or consequential damages arising from a delay in attendance.
14.4. The Client shall ensure that the relevant site is safely accessible and that its personnel are available to assist during the call out.
15. PROCESSING OF PERSONAL INFORMATION
15.1. For purposes of this clause 15, the following terms shall have the meaning assigned to them below:
15.1.1. “Data Protection Legislation” means any and all laws relating to the protection of data or of Personal Information relevant to a party, including POPI, the GDPR (to the extent applicable) and the protection of Personal Information principles agreed to in this Agreement;
15.1.2. “GDPR” means the General Data Protection Regulation 2016/679, as amended from time to time;
15.1.3. “Personal Information” shall have the meaning ascribed thereto in applicable Data Protection Legislation;
15.1.4. “POPI” means the Protection of Personal Information Act, No. 4 of 2013, as amended from time to time; and
15.1.5. “Process” or “Processing” shall have the meaning ascribed thereto in applicable Data Protection Legislation.
15.2. Each party warrants to and in favour of the other that it shall at all times comply with Data Protection Legislation.
15.3. The Client acknowledges that the Company may be required to Process the Personal Information of the Client and other relevant data subjects (“Client’s Personal Information”) in connection with and for the purposes of providing its Services.
15.4. The Company shall –
15.4.1. only Process the Client’s Personal Information for the purpose(s) connected with the provision of the Services and to the extent strictly necessary to provide the services, except to the extent specifically requested to do otherwise by the Client in writing or required or authorised by Data Protection Legislation or other applicable laws;
15.4.2. comply with all reasonable directions and instructions which may be given by the Client regarding the Processing of the Client’s Personal Information;
15.4.3. only Process the Client’s Personal Information strictly in compliance with Data Protection Legislation and the Company’s privacy policy (available on request); and
15.4.4. secure the integrity and confidentiality of the Client’s Personal Information in its possession or under its control by taking appropriate, reasonable technical and organisational measures to prevent –
15.4.4.1. loss of, damage to, or unauthorised destruction of the Client’s Personal Information; and/or
15.4.4.2. unlawful access to or unlawful Processing of the Client’s Personal Information.
15.5. Where the Client provides the Company with Personal Information relating to a third party data subject (including but not limited to the Client’s staff, suppliers, customers, directors, shareholders, employees, and affiliates), the Client warrants that it has obtained all necessary approvals and/or consents, as applicable, from such third party data subjects and to the extent required by applicable law, for the Client to share such Personal Information with Company (unless the Client has another lawful basis for sharing such Personal Information).
15.6. The Client shall be liable to the Company for its failure to comply with any of its obligations under clause 15.5 and shall indemnify the Company against all claims, damages, costs, or administrative fines arising therefrom, except to the extent caused by the Company’s breach of its obligations. The indemnification provisions in this clause 15.5 are in addition to, and do not in any way derogate from, any statutory or common law remedy the Company may have for breach of these T&C’s, including breach of any representation or warranty.
15.7. To the extent that one party constitutes an Operator (as defined in POPI) for purposes of these T&C’s, that party warrants that when Processing any Personal Information for and on behalf of the other party in terms of these T&C’s it shall:
15.7.1. Process such Personal Information only with the knowledge and authorisation of the other party;
15.7.2. not disclose Personal Information to any third parties without the written consent of the other party unless required by law or in the course of the proper performance of the Party’s duties;
15.7.3. have due regard to generally accepted information security practices and procedures which may apply to itself and/or the other party generally or be required in terms of specific industry or professional rules and regulations;
15.7.4. notify the other party immediately where there are reasonable grounds to believe that Personal Information has been accessed or acquired by any unauthorised person;
15.7.5. establish and maintain security measures to secure the integrity and confidentiality of Personal Information in its possession or under its control by taking appropriate, reasonable technical and organisational measures to prevent loss of, damage to, or unauthorised destruction of Personal Information and unlawful access to, or Processing of, Personal Information and shall take reasonable measures to:
15.7.5.1. identify all reasonably foreseeable internal and external risks to Personal Information in its possession or under its control;
15.7.5.2. establish and maintain appropriate safeguards against the risks identified;
15.7.5.3. regularly verify that the safeguards are effectively implemented; and
15.7.5.4. ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards.
15.8. The party which constitutes an Operator hereby indemnifies and holds the other party harmless from any liability whatsoever arising from its failure to comply with the warranties contained in clause 14.
16. COLLECTION, PROVISION, AND USE OF DATA
16.1. For purposes of this clause 16, the following terms shall have the meaning assigned to them below:
16.1.1. “Aggregated Form” means Data from two or more Sources for which reasonable steps have been taken to ensure that that it cannot be used to identify the relevant Sources of such Data, and which either contains no Personal Information or, where any Personal Information is included, it has been adequately de-identified or anonymised in accordance with the Data Protection Legislation;
16.1.2. “Analysis Tools” means the tools used by the Company (or any persons authorised by the Company) in the retrieval, analysis, presentation, and processing of Data as part of the Data Services including for purposes of generating the Outputs and including any algorithms, application programming interfaces, iterative learning processes, and visualisation tools;
16.1.3. “Client Data” means any Data supplied by or collected from the Client by the Company in connection with these T&C’s and which relates in any way to industrial process efficiency, including in respect of power generation and/or consumption and performance optimisation;
16.1.4. “Data Protection Legislation” has the meaning given thereto in clause 15.1.1;
16.1.5. “Data” means data or information in whatever form, including when stored and/or presented electronically;
16.1.6. “Data Services” means the Company’s service offering from time to time in relation to or incorporating the collection, analysis, storage, retrieval, reporting and otherwise processing Data;
16.1.7. “Intellectual Property Rights” means all patents, rights to inventions, copyright, trademarks, service marks, trade, business and domain names and related goodwill, the right to sue for passing off and unfair competition, rights in designs, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, subsisting now or in the future, in each case whether registered or unregistered, and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
16.1.8. “Outputs” means all reports, visualisations, dashboards, assessments, predictions, overviews, and recommendations generated by the processing of Data through the Data Services;
16.1.9. “Personal Information” has the meaning given thereto in clause 15.1.3; and
16.1.10. “Source” means the source from which Data is collected by the Company which may include the Client, the Company’s own operations, and/or the Company’s other customers or suppliers.
16.2. The Company may from time to time provide the Data Services in accordance with, and subject to the Client’s compliance with its obligations under these T&C’s.
16.3. All rights in relation to the Client Data shall remain vested in the Client and nothing in these T&C’s shall be construed as transferring ownership of the Client Data from the Client to the Company. However, the Client acknowledges that the Data Services and Analysis Tools are improved by the volume and quality of Data that the Company collects (including the Client Data), which in turn benefits the Client.
16.4. To facilitate the improvement of, and in order for the Company to provide, the Data Services; the Client hereby grants to the Company a worldwide, royalty-free, perpetual, and irrevocable right and licence to access, store, host, modify, analyse, process, transmit and otherwise use the Client Data as part of the Data Services in accordance with and subject to the following:
16.4.1. the Company shall only provide the Client Data to third parties in Aggregated Form, but may use non-aggregated Client Data internally for development, benchmarking, and improvement of its services;
16.4.2. the Company shall be permitted to use the Client Data in Aggregated Form as part of and to improve and expand the Data Services and Analysis Tools and to provide same to third parties; and
16.4.3. the right and licence granted in terms of this clause 16.4, including the conditions applicable thereto, shall survive the termination of these T&C’s for any reason.
16.5. The Parties agree that, as between them, all Intellectual Property Rights in the Analysis Tools, the Outputs, and all improvements made thereto pursuant to the rights granted in clause 16.3 (“Company IP”), shall be owned by the Company. To the extent any Company IP vests in the Client, the Client hereby assigns it to the Company. The Company grants the Client the right to use such Company IP strictly for the purposes of, and to the extent required to receive, the benefit of the Data Services in accordance with, and for the term of, these T&C’s.
17. NOTICES
17.1. The Client nominates the physical and email address as reflected on the quotation as its domicilium citandi et executandi for service upon it of all notices, demands, requests, consents, approvals, and other communications (“Notices”) whether in connection with any claim or any sum due to the Company or otherwise.
17.2. The Client undertakes to notify the Company, in writing, of any change in:
17.2.1. Physical Address;
17.2.2. Email address;
17.2.3. ownership of the Client’s business;
17.2.4. any share transaction where the majority shareholding is affected.
17.3. All notices, required or permitted to be given to the Company under these T&C’s shall be in writing and sent by electronic mail (email) only to heidim@energypartners.co.za, and shall be deemed received on the date of transmission if sent during business hours, failing which on the next Business Day.
18. GENERAL
18.1. Notwithstanding clause 19, the Company may institute any legal proceedings in any Court in the Republic of South Africa at its sole discretion and the Client consents to the jurisdiction of the South African Courts. The Company may seek interim relief in any court of competent jurisdiction and may choose the seat of arbitration or the forum for disputes at its sole discretion.
18.2. In the event that the Company institutes legal action against the Client for whatever reason, the Client will be liable to pay the legal costs of the Company calculated on an attorney and own client scale.
18.3. Each party agrees to keep all correspondence and personal information, in which ever form or format, received from the Company (including but not limited to negotiations and agreements) strictly confidential and may only be disclosed with written consent from the Company.
18.4. Both the Company and the Client are aware of the provisions of POPI.
18.5. Nothing in these T&C’ shall be interpreted as limiting any statutory warranty that may apply in terms of the CPA.
18.6. No variation or alteration of any of these T&C’s shall be of any force or effect, unless reduced to writing and signed by both parties thereto.
18.7. No waiver or abandonment by the Company of any of its rights in terms of this agreement shall be binding on the Company unless such waiver or abandonment is in writing and signed by the Company.
18.8. No indulgence, extension of time, relaxation, or latitude which the Company may show, grant or allow to the Client shall constitute a waiver by it of any of its rights, and the Company shall not thereby be prejudiced or estopped from exercising any of its rights against the Client which may have arisen in the past or which may arise in the future.
18.9. This agreement contains the entire agreement between the parties and no party shall be bound by any undertakings, representations, warranties, promises, or the like not recorded herein. The Company may terminate these T&C’s for convenience at any time by giving the Client 7 (seven) days’ written notice.
18.10. Each clause of these T&C’s is severable, the one from the other, and if any one or more clauses are found to be invalid or unenforceable, that clause(s) shall not affect the balance of these T&C’s which shall remain of full force and effect.
19. ARBITRATION
19.1. The Parties agree that any disputes regarding these T&C’s, including but not limited to the formation, validity, interpretation or the contents thereof, will be resolved by way of arbitration and will be resolved by arbitration administered by the Arbitration Foundation of Southern Africa (“AFSA”) in accordance with the AFSA Rules. The seat of arbitration shall be Cape Town, South Africa and be conducted in the English language.
19.2. Both Parties hereby expressly opt into and consent to the expedited arbitration procedures provided for in the AFSA Rules, including but not limited to:
19.2.1. Expedited appointment of arbitrators;
19.2.2. Shortened time limits for procedural steps;
19.2.3. Streamlined documentary procedures;
19.2.4. Expedited hearing schedules; and
19.2.5. Accelerated award delivery timeframes.
19.3. This clause 19 shall survive the termination of these T&C’s for any reason whatsoever.
20. GOVERNING LAW
These T&C’s shall be governed by and constituted in accordance with the laws of the Republic of South Africa. However, international sales shall be governed by the United Nations Convention on agreements for the International Sale of Goods (CISG) which will apply save in the event of a conflict with these T&C’s, in which event these T&C’s will prevail.