GTconsult Terms and Conditions
1.1 “Affiliates” means, in relation to the Company, or the Customer, the entities that form part of a group structure comprising of subsidiaries, fellow subsidiaries and/or holding companies and any entity that is managed or controlled by any of the aforesaid entities;
1.2 “this Agreement” means these trading terms and conditions;
1.3 “the Company” means GTconsult [Geldenhuys and Tarr Pty Ltd, GTconsult Managed Services Pty Ltd, Geldenhuys Limited 10240677, GTconsult LLC] as well as any affiliated companies, successors in title, subsidiaries, trading divisions and assigns;
1.4 “the Customer” means the customer of the Products supplied or the recipient of the Services rendered by the Company;
1.5 “the Products” means the products supplied by the Company to the Customer;
1.6 “Services” means the services to be rendered by the Company to the Customer in terms of the SOW, which may include development, support and/or protection services;
1.7 “SOW” means any and each document so named and from time to time prepared by the Company setting out the services to be rendered and time frames agreed upon between the Parties for the performance of the Services or delivery of the Products, including the number of hours allocated for each task or works, if applicable. Where more than one such SOW in respect of the same or different project or aspects of the Services is accepted and agreed by the parties (either concurrently or at different times after the date thereof), then, so long as this Agreement is in effect and has not been terminated, this Agreement shall apply equally to each such SOW.
2. THIS AGREEMENT
2.1 This Agreement shall govern the and the rendering of Services by the Company and, where applicable, by the Company’s Affiliates to the Customer and shall take precedence over any terms and conditions which may be contained in any of the Customer’s documentation and will govern all transactions between the Company, its Affiliates and the Customer. If there is a conflict between this Agreement and any of the terms and conditions contained in a contract or the Company’s or its Affiliates’ other documentation, the provisions of this Agreement will prevail.
2.2 In accepting the Company’s SOW, the Customer will be deemed to have accepted the provisions of this Agreement.
3. SCOPE OF SERVICES
The Services which the Company will perform and the deliverables that will result from such Services, shall be outlined in one or more SOW which shall be signed by both parties. The Customer will appoint and designate a representative, who shall be the Customer’s appointed liaison, in respect of any Services to be performed by the Company and shall have the necessary authority to commit and bind the Customer.
4.1 The purpose of the SOW is to provide an overview of the proposed work plan, to identify the scope of the Services to be performed, and to provide time and costs estimates for the completion of the Services, set out therein.
4.2 The SOW shall constitute an offer by the Company to supply the Products and/or render the Services to the Customer and shall be capable of acceptance by the Customer expressly by signing the SOW, or impliedly by the Customer’s conduct. Each SOW is valid for a period of days from the date of the SOW, which if not accepted by the Customer within the seven (7) calendar days, will be deemed to have been rejected.
4.3 The number of hours allocated in the SOW are an estimate only, based on the number of hours required by the Customer and on the instructions and details received from the Customer. The Company will not be bound to the number of hours allocated.
4.4 No variation or withdrawal of any SOW made by the Company shall be valid unless the Company specifically confirms such variation or withdrawal of the SOW or the Products supplied, or Services rendered in that SOW in writing to the Customer.
4.5 If the Company, at its sole discretion, accepts the cancellation of a SOW, it reserves the right to charge the Customer for all the costs it has incurred up to the date of cancellation at its prevailing prices.
5.1 The price of the Products supplied, or Services rendered shall be that stated in the SOW and may only be varied in accordance with the terms and conditions contained in this Agreement.
5.2 The Company reserves its right to vary any quoted price on the SOW by adding thereto the increased costs to it of any Products or Services resulting from any adverse fluctuation in the rate of exchange, or increase in surcharge, government duty or for any change in the scope of supply subsequent to the SOW.
6.1 The Customer shall pay the price as set out in the SOW.
6.2 Where payment of the price is billed on a progress basis by the Company, payment is due and payable by the Customer within seven (7) calendar days of the date of issue of an invoice by the Company.
6.3 The Customer shall not be entitled, for any cause whatsoever, to withhold, deduct from or defer any amount due by it to the Company. All payments shall be free of exchange and set off.
6.4 The Company may appropriate all payments from the Customer to any such outstanding amounts as it deems fit.
6.5 The Company reserves the right to levy interest on all overdue amounts at 20% per annum from the date that any amount fell due.
6.6 The Customer must notify the Company of any error in any invoice and/or statement submitted to it by the Company within fourteen (14) days from the date of the invoice and/or statement concerned, failing which the invoice and/or statement will be deemed to be free of any errors.
6.7 In addition to the payment for the Services specified in the SOW, the Customer shall reimburse the Company for all reasonable out of -pocket expenses incidentally incurred by the Company or its employees, independent contractors or agents in connection with the Services rendered under this Agreement.
6.8 The Company reserves the right to suspend any and all services or support, under any SOW, in the event of non-payment.
a) PROJECTS (once off or ongoing)
7.1 All Services commissioned for any projects to be carried out by the Company shall be carried out in terms of the specifications at the price set out in the SOW.
7.2 The Company shall determine the manner in which and the person by whom the Services will be carried out, taking into account the specifications and the Customers reasonable requests. The Company may, as its discretion and, where possible, in consultation with the Customer, replace the person or persons charged with rendering the Services for the project.
7.3 The Company shall complete the project with the reasonable skill, care and diligence in accordance with the specifications and timeframes set out in the SOW.
7.4 The Customers acknowledges and agrees that:
7.4.1 should it deviate from the specifications, in any way, or request additional Services to be rendered, that such deviations and requests may affect the price of the project;
7.4.2 the time allocated for the rendering of the Services and the estimated number of hours may be subject to change. Where additional hours are required, such hours will be billed at the agreed rates with the Customer and set out in the SOW;
7.4.3 completion of the Project is not guaranteed after the allotted hours;
7.4.4 where there is a change of circumstances under which the Project it to be performed which cannot be attributable to the Company, the Company may make such changes/amendments to the project as it deems necessary to adhere to the specifications. Any costs arising from or related to such change of circumstances will be fully borne by the Customer.
7.5 The Company will provide the Customer with such reports on the completion of the project at such intervals and in such form as the Customer may from time to time request.
8.1 All Services commissioned for any support services to be carried out by the Company shall be carried out in terms of the SOW;
8.2 The Company’s sole support obligations are those specifically described in the SOW. The Customer shall not be entitled to support regarding:
8.2.1 maintenance and support of unspecified 3rd party software;
8.2.2 remediation of network related problems;
8.2.3 first level and end user support, including trouble shooting end user workstation and network problems;
8.2.4 ensuring the health of the server network environment, server hardware and network capacity and the fault finding with the network;
8.2.5 other general system administration and operational responsibilities; and
8.2.6 patching server software according to 3rd party software vendor security bulletins.
8.3 In the event that the Customer does not utilize all the allocated hours, for consultative and support hours only, the hours not utilized for these services may be used for system optimization, business analysis and project roadmaps, if applicable. Should this activity still not utilize all the allocated hours, the remaining hours may be carried over to the following month, however, will expire on the 3rd rollover.
8.4 Where additional hours are required, such hours will be billed at the agreed rates with the Customer and set out in the SOW.
8.5 The Company shall have the right to determine:
8.5.1 the employees assigned for the purpose of the performance of the Services and shall use its best endeavors to ensure that the Services rendered in terms of the SOW are performed in an efficient manner by adequately trained personnel; and
8.5.2 The method and manner in which any fault or issue is to be resolved.
10. DELIVERY OF PRODUCTS, COMPLETION OF SERVICES AND TESTING
10.1 The Company shall provide the Products or Services in accordance with, and within the time frames, as set out in the SOW, if applicable, as read with this Agreement;
10.2 The Company and the Customer shall jointly during the performance of the Services with respect to all deliverables, in accordance with the acceptance criteria and time frames specified in the SOW.
11. CUSTOMER’S OBLIGATIONS
11.1 To enable the Company to perform its obligations under this Agreement the Customer shall:
11.1.1 co-operate with the Company;
11.1.2 provide the Company with any information reasonably required by the Company;
11.1.3 obtain the necessary permissions and/or consents which may be required before the commencement of the Services; and
11.1.4 comply with such other requirements as may be set out in the SOW or as otherwise agreed between the parties.
12.1 The Company warrants that:
12.1.1 the Services performed under this Agreement shall be performed using reasonable skill and care and are of a quality conforming to generally accepted industry standards and practices;
12.1.2 It shall devote adequate resources to meet its obligations under this Agreement;
12.1.3 Neither the Services nor any deliverables nor receipt or use of the same by the Customer will infringe, misappropriate or otherwise violate or will infringe any intellectual property right or other proprietary right of any third party;
12.1.4 neither the Services nor the deliverables will contain (a) any virus, trojan horse, worm, backdoor or other software or hardware devices the effect of which is to permit unauthorised access or to disable, erase or otherwise harm any computer, systems or software, or (b) any time bomb, drop dead device or other software or hardware device designed to disable a computer programme automatically with the passage of time or under the positive control of a person other than an authorised licensee or owner of a copy of the programme or the right and title in and to the programme; and
12.1.5 It is the owner or licensee of all rights necessary and appropriate to grant the licences and/or assign the rights to be granted in these terms and conditions.
12.2 The Company only extends a supplier’s warranty in respect of the Products to the Customer and no more. Furthermore, any defect or problem with the Products must be notified to the Company within seven (7) days from the date of delivery, failing which the warranty will not be honoured.
12.3 The above warranty does not apply to Products used other than for the intended purpose, or for defects arising through fair wear and tear or neglect or to Products that have been damages or rendered defective through incorrect application or installation by a third party, misuse or abuse, improper storage, impact, attempted repairs by the Customer without the Company’s prior written approval, breakdown caused by another product or the negligence or fault of the Customer or a third party.
12.4 Save for the above, the Company gives no warranties of whatsoever nature, whether express or implied, in respect of the Products or Services.
13. LIMITATION OF LIABILITY AND INDEMNITY
13.1 Any liability of the Company for direct loss or damage arising from a breach of contract or this Agreement shall not exceed the total price paid or due to be paid by the Customer for the Products or Services that form the subject matter of such claim. Under no circumstances will the Company be liable for any direct, consequential, special or delictual loss or damage of any nature and howsoever arising which may be suffered by the Customer or any third party as a result of or in connection with the Products and/or Services or any transaction contemplated herein.
13.2 In addition to the above, the Customer hereby indemnifies the Company for and holds it harmless against any claim, damage, loss, cost or expense of whatsoever nature, made against the Company by any third parties in respect of the Products or the Services or any third party’s use of the Products or any other matter for which the Company would not be liable to the Customer under this Agreement.
14.1 If the Customer fails to pay any amount on its due date, or suffers any civil judgment being taken or entered against it, or commits an act of insolvency, or is placed under sequestration, liquidation or judicial management (whether provisional or final, voluntary or compulsory), or makes or attempts to make any general offer of compromise with any of its creditors or sells its business or changed the structure, the Company shall, without prejudice to any other remedies that it has available to it, be entitled to:
14.1.1 suspend or cease performance of its obligations to the Customer until the Customer’s breach has been remedied; and/or
14.1.2 summarily cancel this Agreement; and/or
14.1.3 repossess any Products which have not been paid for; and/or
14.1.4 exercise its lien over any Products or any of the Customer’s property in its possession or under its control; and/or
14.1.5 summarily cancel this Agreement or claim specific performance of all of the Customer’s obligations whether or not such obligations have fallen due for performance, in all events without prejudice to the Company’s right to claim damages.
15. FORCE MAJEURE
The Company will not be liable to the Customer for failing to perform its obligations in terms of this Agreement as a result of an act of God, storms, lightening, heavy rains, strikes, lock-outs, non-availability or extended lead time of goods, or delay or failure in the supply by third parties in rendering any service, or any cause beyond its control.
16. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL INFORMATION
16.1 The Company shall retain ownership of its confidential information and all of the intellectual property rights in respect of the Products and Services, whether same have been registered or not.
16.2 Without limiting the above, the Customer shall not, directly or indirectly and whether for reward or not, at any time use, exploit or disclose any of the Company’s confidential information as to the methods, plans, drawings, codes, software, formulas, programs, architectures, prices, documents, or any other information relating to the Products or Services to a third party. The Customer hereby indemnifies the Company against any loss suffered by the Company as a result of the Customer breaching this clause.
16.3 The Customer hereby indemnifies and holds the Company harmless against all claims and expenses of whatever nature and description arising from the alleged or actual infringement or any third party’s intellectual property rights occasioned by the Company’s performance of any agreement.
17. CESSION AND ASSIGNMENT
17.1 The Customer shall not be entitled to cede its rights or assign its obligations under this Agreement.
17.2 The Company shall be entitled to cede its rights or assign its obligations under this Agreement and such cessionary shall be entitled to enforce its rights hereunder and in terms of any security furnished by the Customer to the Company against the Customer and/or rendered by the cessionary to the Customer.
17.3 The Company may subcontract its obligations hereunder without the Customer’s consent.
18. LEGAL PROVISIONS
18.1 This Agreement and all transaction between the Customer and the Company shall be governed by and decided upon in accordance with the laws of the Republic of South Africa.
18.2 The Company shall, at its option, be entitled to institute action in the Magistrate’s Court, notwithstanding that the amount of its claim exceeds the jurisdiction of such Court. This provision shall not preclude the Company from instituting action against the Customer in any other competent court with jurisdiction.
18.3 A certificate issued by any director or manager of the Company, whose authority, appointment and signature it shall not be necessary to prove, that purports to certify any indebtedness of the Customer to the Company, delivery of the Products to the Customer, rendering of the Services to the Customer or any other fact shall constitute prima facie proof of such indebtedness or delivery or rendering of Services or any other fact.
18.4 The Customer shall be liable for the Company’s legal fees in the event of the Company enforcing or defending its rights hereunder on an attorney and own client scale, including Counsel’s fees on brief, tracing agent’s fees and collection charges.
19.1 The parties’ domicilium addresses as set out in will constitute their chosen domicilium citandi et executandi.
19.2 A party may change its domicilium by furnishing the other party with seven (7) days written notice of its new physical address.
20.1 This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof. No party shall be entitled to rely upon any term, warranty, guarantee, condition or representation, unless it is contained herein.
20.2 No amendment of this Agreement and no extension of time, waiver or relaxation of any of the provisions of this Agreement shall be binding, unless recorded in a single document signed by both of the parties.
20.3 No relaxation or indulgence shall prejudice or be deemed to be a waiver of any of the Company’s rights hereunder.
20.4 Each provision of this Agreement is severable, the one from the other. If any provision is found to be defective, unlawful or unenforceable for any reason, the remaining provisions shall continue to be of full force and effect.
20.5 The rule of construction that this Agreement be interpreted against the party responsible for drafting this document shall not apply.
21.1 The Customer hereby consents and grants authority to the Company to conduct credit checks, searches and the like with any credit agency or party which the Company may at its discretion consider expedient or necessary, inter alia, for the purposes of ascertaining the credit worthiness of the Customer or in order to trace the Customer or any of its assets.
21.2 The Company shall be entitled to record any adverse credit report with any agency or person. The Customer acknowledges that the application for and existence of any account with the Company may be recorded by credit agencies and details of the conduct of the account may be given to and duly recorded by and shared with persons for various reasons.
21.3 The Customer hereby waives any claim and indemnifies and holds the Company harmless against any claim for any nature and howsoever arising from the aforesaid instances.
22.1 The Company has the sole option to refer any dispute arising hereunder in connection with any agreement to arbitration, which arbitration shall bind both the Company and the Customer.
22.2 The arbitrator must be a person agreed upon by the parties, or failing agreement, an arbitrator must be appointed by the Arbitration Foundation of South Africa, who shall then finally resolve the dispute or issue in accordance with the Rules of the Arbitration Foundation of Southern Africa.
The signatory to this Agreement (“the Surety”) binds himself/herself in his/her private and individual capacity as surety for and co-principal debtor with the Customer in favour of the Company for the due performance of any obligation of the Customer and for the payment to the Company by the Customer of any amount which may now or at any time be or become owing to the Company by the Customer. The surety’s liability to the Company shall not be limited by any credit limit granted by the Company to the Customer. This suretyship shall remain in full force and effect for so long as any amounts shall remain owing by the Customer to the Company and notwithstanding the temporary extinction of the Customer’s indebtedness to the Company. The surety waives and renounces the legal benefits of excussion (the right to require the Company to first proceed against the Customer for payment of any debt owing to the Company before proceeding against the surety), cession of action (the right to require the Company to give cession of the action for payment of debts to the surety before any action against the surety may be taken), the benefit of simultaneous citation and division of debt (the right of a co-surety to be liable only for his pro rata share of the principal debt) and the right to an accounting from the Company. The surety further undertake to be bound by the remaining provisions of this Agreement mutatis mutandis and choses their domicilium address as the Customer’s physical address set out in the application section of this Agreement.