SONAH Group (Pty) Ltd - General Terms and Conditions of Sale
Version: August 2026. These terms govern all Orders. No signature is required: they apply when you place an Order, accept delivery of Goods, or accept performance of Services. A PDF copy is available from the Company on request (admin@sonahgroup.com).
IMPORTANT NOTICE: PLEASE READ
THESE GENERAL TERMS AND CONDITIONS CONTAIN PROVISIONS THAT APPEAR IN BOLD, CAPITALISED TEXT. THOSE PROVISIONS MAY: (I) LIMIT THE RISK OR LIABILITY OF THE COMPANY OR OF ANY OTHER PERSON; (II) CONSTITUTE AN ASSUMPTION OF RISK OR LIABILITY BY THE CUSTOMER; (III) IMPOSE AN OBLIGATION ON THE CUSTOMER TO INDEMNIFY THE COMPANY OR ANY OTHER PERSON; OR (IV) BE AN ACKNOWLEDGEMENT OF A FACT BY THE CUSTOMER.
THESE PROVISIONS ARE IMPORTANT. THE CUSTOMER SHALL READ THEM CAREFULLY AND SHALL ENSURE THAT IT UNDERSTANDS THEM. THE CUSTOMER MAY, BEFORE PLACING AN ORDER, ASK THE COMPANY TO EXPLAIN ANY PROVISION OF THESE GENERAL TERMS AND CONDITIONS, AND THE COMPANY SHALL DO SO AT NO CHARGE.
1. APPLICATION AND ACCEPTANCE
1.1 All Orders are exclusively subject to these GTCs. By placing an Order (including an Order placed through the Company’s website or online portal), by accepting delivery of Goods, or by accepting performance of Services, the Customer accepts these GTCs and agrees to be bound by them. No signature by the Customer is required for these GTCs to apply.
1.2 The Company rejects any terms and conditions of the Customer that are contrary to, or that deviate from, these GTCs, unless the Company has expressly consented to them in writing. No qualification or condition contained in any order form, purchase order, acknowledgement of order or other document issued by the Customer forms part of the Agreement or overrides these GTCs unless expressly agreed to in writing by the Company.
1.3 These GTCs replace all general terms and conditions previously issued by the Company, in respect of all Orders confirmed on or after the version date appearing on the first page.
1.4 The Company may amend these GTCs from time to time. An amendment shall take effect upon publication of the amended GTCs on the Company’s website or on written notice to the Customer. The GTCs applicable to an Order shall be those in force on the date on which the Company confirms that Order, and an amendment shall not affect an Order already confirmed. This clause 1.4 shall apply notwithstanding clauses 4.6 and 26.2.
1.5 Price lists and catalogues issued by the Company are for information purposes only and shall not constitute a binding offer of sale.
1.6 The Company may reject any Order in whole or in part.
1.7 Application of the Consumer Protection Act. TO THE EXTENT THAT THE CPA APPLIES TO A TRANSACTION BETWEEN THE COMPANY AND THE CUSTOMER, NOTHING IN THESE GTCs IS INTENDED TO LIMIT OR EXCLUDE ANY RIGHT CONFERRED ON THE CUSTOMER BY THE CPA, AND ANY PROVISION THAT PURPORTS TO DO SO APPLIES ONLY TO THE EXTENT PERMITTED BY THE CPA. In terms of section 5(2)(b) of the CPA, the CPA does not apply to a transaction where the Customer is a juristic person whose asset value or annual turnover equals or exceeds the threshold determined by the Minister in terms of section 6 of the CPA.
2. DEFINITIONS
Unless inconsistent with the context, the following terms shall bear the meanings assigned to them below:
2.1 “Agreement” means the agreement concluded between the Company and the Customer for the sale of Goods and/or the supply of Services, which includes the Order Confirmation, these GTCs and any annexures to them;
2.2 “Business Day” means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa, and “Business Days” has a corresponding meaning;
2.3 “Company” means SONAH Group (Pty) Ltd, registration number 2026/373458/07, a private company incorporated in accordance with the laws of the Republic of South Africa;
2.4 “Company Brand Products” means Goods manufactured for, and sold under, a brand owned or licensed by the Company, as identified in the Order Confirmation;
2.5 “Contract Price” means the price of the Goods and/or Services as set out in the Order Confirmation;
2.6 “Contract Specification” means the specification or other description of the Goods and/or Services set out in the Order Confirmation;
2.7 “CPA” means the Consumer Protection Act 68 of 2008;
2.8 “Customer” means the person or legal entity with whom the Company concludes an Agreement for the sale of Goods and/or the supply of Services;
2.9 “Delivery Note” means a note reflecting at least the invoice number, the net and gross weights, and the number of bags, packages, cartons or other containers in which the Goods are supplied;
2.10 “Force Majeure” means any event beyond the reasonable control of a Party that prevents or delays that Party from performing an obligation under the Agreement, other than an obligation to pay money, including war, insurrection, civil unrest, riot, terrorism, strike, lock-out, act of God, flood, fire, epidemic or pandemic, governmental action or control, water restrictions, interruption or curtailment of electricity supply (including load shedding or load curtailment), failure or disruption of ports, shipping or transport infrastructure, and the failure of a supplier or manufacturer for any of these reasons;
2.11 “Goods” means the goods described in the Order Confirmation;
2.12 “GTCs” means these general terms and conditions;
2.13 “NCA” means the National Credit Act 34 of 2005;
2.14 “Net Value” means in relation to any Goods, the price invoiced for those Goods excluding VAT, freight, insurance and any other separately itemised charge, and after deduction of any discount granted;
2.15 “Order” means an order placed by the Customer with the Company for specific Goods and/or Services;
2.16 “Order Confirmation” or “ProForma Invoice” means the written confirmation issued by the Company in response to an Order, setting out the Goods and/or Services, the Contract Price and the Contract Specification;
2.17 “Parties” means the Company and the Customer, and “Party” means either of them as the context requires;
2.18 “Personal Information” means personal information as defined in POPIA;
2.19 “POPIA” means the Protection of Personal Information Act 4 of 2013;
2.20 “Prime Rate” means the publicly quoted basic rate of interest per annum charged by the Company’s bankers on unsecured overdraft facilities to their most creditworthy corporate clients, as certified by any manager of that bank whose appointment, authority and designation need not be proved;
2.21 “Services” means the services described in the Order Confirmation;
2.22 “Service Provider” means any third party appointed by the Company to perform the Services or any part of them;
2.23 “Tax Invoice” means the tax invoice issued by the Company in respect of Goods supplied or Services performed, complying with section 20 of the Value-Added Tax Act 89 of 1991 and reflecting, among other particulars, the invoice number and date, the names, addresses and (where applicable) VAT registration numbers of both Parties, a description and quantity of the Goods and/or Services, and the amount payable;
2.24 “VAT” means value-added tax levied in terms of the Value-Added Tax Act 89 of 1991.
3. INTERPRETATION
In these GTCs, unless the context otherwise requires:
3.1 words importing the singular shall include the plural and vice versa;
3.2 words indicating one gender shall include the other genders;
3.3 words indicating natural persons shall include juristic and artificial persons;
3.4 the headings are for convenience only and shall not govern the interpretation of the clauses to which they relate;
3.5 a reference to “days” or “calendar days” is a reference to calendar days, and a reference to “Business Days” is a reference to Business Days only; any prescribed period shall be calculated exclusive of the first day and inclusive of the last day, unless the last day is not a Business Day, in which case the last day is the next Business Day;
3.6 if there is any conflict between a figure expressed in numerals and the same figure expressed in words, the figure expressed in words shall prevail;
3.7 if there is any conflict or inconsistency between these GTCs and any other agreement concluded between the Parties, these GTCs shall prevail, unless the Parties have expressly agreed otherwise in writing and that writing records that it overrides these GTCs;
3.8 the rights and obligations of a Party arising from these GTCs shall devolve upon and bind its successors-in-title;
3.9 if any provision in a definition is a substantive provision conferring rights or imposing obligations on a Party, effect shall be given to it as if it were a substantive provision in the body of these GTCs, notwithstanding that it appears only in the definitions clause;
3.10 a reference to any statute is a reference to that statute as amended, consolidated or re-enacted from time to time;
3.11 a reference to anything being “in writing” includes an email sent to the relevant address recorded in clause 22;
3.12 these GTCs shall be governed by and interpreted in accordance with the laws of the Republic of South Africa; and
3.13 the rule of construction that an agreement is interpreted against the Party responsible for its drafting or preparation shall not apply to these GTCs or to any annexure to them.
4. OFFERS, ORDERS AND CONCLUSION OF THE AGREEMENT
4.1 Any offer by the Company, whether verbal or written, shall be subject to change and shall not be binding, unless it is expressly stated to be binding or contains a stated period for acceptance.
4.2 The Company’s issue of an Order Confirmation shall constitute an offer by the Company on the terms of that Order Confirmation read with these GTCs. The Agreement shall come into existence when the Customer accepts that offer within the validity period in clause 4.3, whether by payment of the Order Confirmation in accordance with clause 6.2, by written acceptance, or, where the Company has agreed credit terms with the Customer in writing, by accepting delivery of the Goods or performance of the Services. A reference in these GTCs to the Company confirming an Order is a reference to the date on which the Company issues the Order Confirmation.
4.3 An Order Confirmation shall be valid for, and open for acceptance by the Customer for, 7 (seven) calendar days from its date, after which it shall lapse automatically unless the Company extends it in writing.
4.4 Where the Contract Price depends on goods priced in a foreign currency, the Company may withdraw an Order Confirmation that has not yet been accepted, and re-quote, if the ZAR/EUR or ZAR/USD exchange rate moves against the Company by more than R0.50 (fifty cents) from the rate applied in that Order Confirmation. The Company shall notify the Customer before doing so, and the Customer may then decline the re-quoted price without charge.
4.5 The Order Confirmation, read with these GTCs, shall determine the type, scope and time of delivery of the Goods and/or the performance of the Services, and shall constitute the entire agreement between the Parties in respect of its subject matter. Verbal assurances given by the Company before conclusion of the Agreement shall not be binding unless recorded in the Order Confirmation.
4.6 Save as provided in clause 1.4, additions or modifications to the Agreement, including to these GTCs, shall be recorded in writing and signed by both Parties in order to be valid. Signature by electronic means in accordance with the Electronic Communications and Transactions Act 25 of 2002 shall be sufficient for this purpose.
4.7 Information given by the Company in respect of the Goods or Services (for example dimensions, tolerances and technical data), and the Company’s representations of them (for example drawings and illustrations), are approximate only, unless precise conformity is required for the purpose contractually agreed. These are descriptions or identifications and are not guaranteed characteristics. Variations that are customary in the trade, that result from legal provisions, or that represent technical improvements, and the replacement of components with parts of equivalent value, shall be permitted provided that they do not affect suitability for the purpose contractually agreed.
4.8 Where the Tax Invoice differs from the Order Confirmation in respect of the Contract Price or the Contract Specification, the Order Confirmation shall prevail, unless the Parties have agreed the variation in writing in accordance with clause 4.6.
4.9 Assurances of characteristics, or guarantees of quality or durability, shall be binding only if agreed separately in writing.
5. PRICES
5.1 Unless the Order Confirmation states otherwise, prices shall be quoted in South African Rand and shall exclude VAT. The total amount reflected on the Order Confirmation shall be shown inclusive of VAT.
5.2 Prices shall exclude freight, customs duties, insurance, assembly, installation and other additional costs. These costs shall be itemised separately on the Order Confirmation.
5.3 The Company may charge a surcharge on small-volume Orders as a flat fee for additional expenses such as packing and picking. Any such surcharge shall be shown on the Order Confirmation.
5.4 The Company retains ownership of, and all intellectual property rights in, all offer documents, quotations, drawings and specifications. These shall not be made available to third parties without the Company’s prior written consent.
5.5 The Company may change its list prices from time to time. A change to a list price shall not affect an Order that the Company has already confirmed, except as provided in clause 5.6.
5.6 Where the Company has agreed in writing to a delivery date more than 90 (ninety) days after the date of the Order Confirmation, and the Company’s costs of material, labour, freight, customs duties, surcharges or taxes increase materially before delivery, the Company may increase the Contract Price by the amount of that increase on 14 (fourteen) days’ written notice to the Customer. The Customer may cancel the affected part of the Order without charge within 7 (seven) days of receiving that notice.
5.7 THE COMPANY MAY REQUIRE THE CUSTOMER TO FURNISH A DEPOSIT OR A BANK GUARANTEE ACCEPTABLE TO THE COMPANY. IF THE DEPOSIT OR GUARANTEE IS NOT PROVIDED AS REQUESTED, THE COMPANY MAY CANCEL THE ORDER WITHOUT INCURRING ANY LIABILITY TO THE CUSTOMER.
5.8 Where Goods have not been collected, or could not be delivered, within 10 (ten) Business Days of the date on which they were available for collection or delivery, and this is a result of the Customer’s conduct, the Company may charge a storage fee of 0.5% (zero comma five percent) of the Net Value of the affected Goods for each week or part of a week during which the Company stores those Goods. This is the same fee as that referred to in clause 7.7.2, and it may be charged only once in respect of any given period.
5.9 If the rate of VAT is increased or decreased, or a new tax, duty or levy is imposed on the supply of the Goods or Services, after the date of the Order Confirmation but before the time of supply, the Contract Price shall be adjusted to reflect that change, as contemplated in section 67 of the Value-Added Tax Act 89 of 1991.
5.10 Where the Company has agreed credit terms with the Customer in writing and the Contract Price depends on goods priced in a foreign currency, the Company may increase the Contract Price to reflect any adverse movement of more than 2% (two percent) in the relevant ZAR exchange rate between the date of the Order Confirmation and the date on which the Company pays its supply source for the affected goods. Any such increase shall be limited to the direct effect of the exchange-rate movement on the affected goods and shall be itemised separately on the Tax Invoice.
6. PAYMENT TERMS
6.1 Once the Customer has placed an Order, the Company shall issue an Order Confirmation.
6.2 Payment of the Order Confirmation in full shall be required before delivery, unless the Company has agreed credit terms with the Customer in writing. A Tax Invoice shall be issued to the Customer on dispatch of the Goods, or on delivery or commencement of the Services.
6.3 Unless agreed otherwise in writing, payments shall be made in full and without deduction, and bank charges shall be for the Customer’s account.
6.4 The Customer shall not withhold payment, set off any amount, or make any reduction in price, on account of any claim it may have against the Company. Any such claim shall be pursued separately.
6.5 If the Customer falls into arrears, interest shall accrue on the overdue amount at the Prime Rate plus 5% (five percent) per annum, calculated daily and compounded monthly from the due date to the date of payment. Interest shall cease to accrue once the total unpaid interest equals the unpaid capital, in accordance with the in duplum rule. Where the Agreement constitutes an incidental credit agreement as contemplated in the NCA, interest shall be charged at a rate not exceeding the maximum rate prescribed under the NCA for such agreements.
6.6 Where the Customer holds a credit with the Company, the Company shall apply that credit against the Customer’s next Order or, on the Customer’s written request, refund it to a bank account nominated by the Customer in writing. The Company shall notify the Customer of any credit that remains unutilised for 12 (twelve) months and shall, on the Customer’s written request, refund it. A credit is not forfeited by reason of the passage of time.
6.7 If, after conclusion of the Agreement, the Company becomes aware of circumstances that are likely to reduce the Customer’s creditworthiness materially and to place payment of the Company’s outstanding receivables at risk, the Company may make outstanding deliveries or Services conditional on advance payment or the provision of security.
6.8 THE CUSTOMER HEREBY AUTHORISES THE COMPANY TO OBTAIN INFORMATION ABOUT THE CUSTOMER FROM ANY REGISTERED CREDIT BUREAU. THE CUSTOMER ACKNOWLEDGES THAT FAILURE TO PAY ANY AMOUNT DUE IN TERMS OF THE AGREEMENT MAY RESULT IN AN ADVERSE LISTING OF THE CUSTOMER WITH A REGISTERED CREDIT BUREAU. The Company shall give the Customer at least 20 (twenty) Business Days’ written notice before reporting any adverse information to a credit bureau.
6.9 The Company shall be entitled to appropriate all payments received first to costs, then to interest outstanding, and thereafter to the outstanding capital.
6.10 The Company may suspend further deliveries of Goods and performance of Services while any amount owed by the Customer to the Company is overdue. THE CUSTOMER HEREBY WAIVES ANY CLAIM AGAINST THE COMPANY FOR LOSS OR DAMAGE ARISING FROM THE COMPANY’S REFUSAL TO SELL GOODS OR SUPPLY SERVICES TO THE CUSTOMER WHILE THE CUSTOMER’S ACCOUNT IS OVERDUE.
6.11 Credit terms shall be granted in the Company’s sole discretion, only in terms of a credit application in the form required by the Company, and subject to any credit limit and any security (including any suretyship, guarantee or credit insurance) that the Company requires. The Company may withdraw or reduce a credit facility or credit limit at any time on written notice to the Customer. A withdrawal or reduction shall not affect an Order already confirmed, but the Company may make outstanding deliveries under a confirmed Order conditional on advance payment or the provision of security as contemplated in clause 6.7.
7. DELIVERY, TIME OF PERFORMANCE AND PASSING OF RISK
7.1 Unless the Order Confirmation states otherwise, the Company shall deliver the Goods to the delivery address specified by the Customer in the Order. Delivery charges shall be itemised separately in accordance with clause 5.2.
7.2 Signature of the Company’s Delivery Note and/or Tax Invoice by the Customer, or by any representative or employee of the Customer, shall constitute acceptance by the Customer that the Goods reflected in that document have been delivered in full and in good order, save in respect of defects that were not reasonably apparent on inspection, and save in respect of short or incorrect delivery notified in accordance with clause 10.1.
7.3 DELIVERY PERIODS AND DEADLINES INDICATED BY THE COMPANY ARE APPROXIMATE ONLY, UNLESS A FIXED DATE OR PERIOD IS EXPRESSLY AGREED IN WRITING. Where shipment has been agreed, delivery periods and deadlines refer to the time of handover to the forwarding agent, carrier or other third party engaged to carry out the transport.
7.4 WHILE THE COMPANY SHALL MAKE EVERY REASONABLE EFFORT TO DISPATCH AND DELIVER THE GOODS AND TO PERFORM THE SERVICES AS ADVISED, THE COMPANY DOES NOT GUARANTEE DISPATCH, DELIVERY OR PERFORMANCE ON ANY SPECIFIC DATE AND, SUBJECT TO CLAUSE 13, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING CONSEQUENTIAL LOSS, ARISING FROM A DELAY IN DELIVERY OR PERFORMANCE. NOTHING IN THIS CLAUSE LIMITS ANY RIGHT THE CUSTOMER MAY HAVE IN TERMS OF SECTIONS 19, 47 OR 54 OF THE CPA WHERE THE CPA APPLIES.
7.5 Subject to clause 7.7, the Customer shall not cancel an Order by reason of a delay, unless the delay exceeds 60 (sixty) calendar days from the agreed delivery date and the Company has failed to deliver within 14 (fourteen) days of written notice from the Customer requiring delivery. IF THE CUSTOMER FAILS, REFUSES OR NEGLECTS TO TAKE DELIVERY OF THE GOODS, THE CUSTOMER SHALL REMAIN LIABLE FOR THE CONTRACT PRICE AND FOR STORAGE COSTS IN TERMS OF CLAUSE 5.8, AND THE COMPANY MAY RETAIN ANY DEPOSIT PAID BY THE CUSTOMER IN REDUCTION OF THE COMPANY’S DAMAGES, UNLESS AND UNTIL THE COMPANY ELECTS TO CANCEL THE ORDER IN TERMS OF CLAUSE 7.7.3, IN WHICH EVENT THE CANCELLATION FEE IN THAT CLAUSE APPLIES IN PLACE OF THE CONTRACT PRICE.
7.6 IF THE COMPANY IS PREVENTED FROM PERFORMING ANY OBLIGATION AS A RESULT OF FORCE MAJEURE, THE COMPANY MAY SUSPEND PERFORMANCE FOR THE DURATION OF THAT EVENT OR, IF THE EVENT CONTINUES FOR MORE THAN 60 (SIXTY) DAYS, CANCEL THE AFFECTED PART OF THE AGREEMENT, AND SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, CONSEQUENTIAL OR OTHERWISE, RESULTING FROM THAT SUSPENSION OR CANCELLATION. Where the Company cancels in terms of this clause, it shall refund any amount paid in advance in respect of Goods not delivered or Services not performed.
7.7 If the Customer does not accept the Goods, in whole or in part, within 10 (ten) Business Days after the delivery date confirmed in the Order Confirmation, or, in the case of deliveries on call, does not request the Goods within 10 (ten) Business Days of the confirmed availability date, the Company may, after allowing the Customer a reasonable period of grace in writing:
7.7.1 reschedule the Order to the next available delivery date;
7.7.2 store the Goods and charge the storage fee referred to in clause 5.8; or
7.7.3 cancel the Order in whole or in part and charge a cancellation fee of 5% (five percent) of the Net Value of the cancelled Order.
The cancellation fee in clause 7.7.3 shall constitute a minimum: the Company reserves the right to prove and recover its higher actual damages, including amounts paid to its supply source for Goods procured for the cancelled Order that the Company cannot reasonably recover or redeploy, and the Customer reserves the right to prove that the Company’s actual damages are lower. The Company likewise reserves the right to prove higher actual storage costs, and the Customer the right to prove lower actual storage costs.
7.8 If the Customer postpones a confirmed delivery or performance date for a second time, the Company may charge the Customer a postponement fee of R2,000.00 (two thousand Rand) per instance. If postponements induced by the Customer result in an overall delay of more than 28 (twenty-eight) days, the Company may exercise its rights in terms of clause 7.7.
7.9 Unless otherwise agreed in writing, risk in the Goods shall pass to the Customer on delivery of the Goods at the delivery address specified in the Order, or on collection of the Goods by the Customer or its carrier where collection has been agreed.
7.10 If dispatch or delivery is delayed as a result of circumstances attributable to the Customer, risk shall pass to the Customer on the day on which the Company notifies the Customer that the Goods are ready for dispatch.
7.11 IF THE COMPANY IS UNABLE TO DELIVER THE GOODS, OR ANY PART OF THEM, BECAUSE THE COMPANY’S SUPPLY SOURCE FOR THOSE GOODS HAS FAILED, IN WHOLE OR IN PART, FOR ANY REASON BEYOND THE COMPANY’S REASONABLE CONTROL (INCLUDING A SUPPLIER’S OR MANUFACTURER’S INABILITY OR REFUSAL TO SUPPLY, ALLOCATION OR STOCK SHORTAGES, DISCONTINUATION OF THE GOODS, OR A SUPPLIER’S OR MANUFACTURER’S INSOLVENCY), THE COMPANY MAY, ON WRITTEN NOTICE TO THE CUSTOMER, CANCEL THE AFFECTED PART OF THE AGREEMENT WITHOUT LIABILITY. IN THAT EVENT THE COMPANY SHALL, WHERE REASONABLY PRACTICABLE, FIRST OFFER THE CUSTOMER EQUIVALENT ALTERNATIVE GOODS, AND SHALL REFUND ALL AMOUNTS PAID BY THE CUSTOMER IN RESPECT OF THE GOODS NOT DELIVERED. SUBJECT TO CLAUSES 1.7 AND 13.4, THAT REFUND IS THE CUSTOMER’S SOLE REMEDY IN RESPECT OF A CANCELLATION UNDER THIS CLAUSE 7.11.
8. PLACE OF PERFORMANCE, SHIPPING, PACKAGING AND ACCEPTANCE
8.1 The place of performance for all obligations under the Agreement shall be the Republic of South Africa, unless agreed otherwise. Where the Company is also responsible for installation or other Services, the place of performance shall be the site at which the installation or Services are to be performed.
8.2 The Company shall select the shipping method and packaging, acting reasonably.
8.3 A shipment shall be insured against theft, breakage, transport damage, fire, water damage or other insurable risks only at the express written request of the Customer and at the Customer’s cost.
8.4 Where acceptance of the Goods or Services is required, the Goods or Services shall be deemed to have been accepted on the earliest of the following:
8.4.1 the Customer declaring acceptance in writing;
8.4.2 the expiry of 10 (ten) Business Days after delivery, or after completion of installation where the Company is responsible for installation, provided that the Company has notified the Customer of the delivery or completion and has requested the Customer’s acceptance; or
8.4.3 the expiry of 6 (six) Business Days after the Customer has begun using the Goods for their intended purpose,
provided that deemed acceptance shall not occur where, within the relevant period, the Customer has notified the Company in writing of a defect that prevents or substantially affects the use of the Goods.
8.5 On acceptance, or on deemed acceptance, the Company’s obligation to deliver the Goods or to perform the relevant installation or Services shall be discharged, and any balance of the Contract Price shall become due and payable in accordance with clause 6.2. Acceptance and deemed acceptance do not limit the Customer’s rights in respect of any defect notified in accordance with clause 10.1, nor its warranty rights under clause 12.
9. RETURNS AND RETURN POLICY
9.1 The Customer shall not return Goods to the Company for any reason unless:
9.1.1 the Company has agreed in writing to accept the return and to the conditions of that return;
9.1.2 the Goods are returned in accordance with clause 10.4;
9.1.3 the Goods were intended to satisfy a particular purpose communicated to the Company in writing before the purchase, are found not to satisfy that purpose within 10 (ten) Business Days of delivery, and the Company is notified within that period; or
9.1.4 the Customer is exercising a right to return the Goods in terms of the CPA.
9.2 Subject to clauses 9.10 and 9.11, the Company shall not accept returned Goods if:
9.2.1 they were not supplied or invoiced by the Company;
9.2.2 they are not returned in their original packaging and in a perfect, resaleable condition;
9.2.3 the Net Value of the Goods is less than R2,000.00 (two thousand Rand);
9.2.4 the Goods were not purchased by the Customer directly from the Company;
9.2.5 the delivery date of the Goods was more than 30 (thirty) calendar days before the return request;
9.2.6 the Goods are not in a resaleable condition, for example Goods no longer included in the Company’s official price list, or components or products made to measure or tailor-made for the Customer that have since been subjected to technical changes;
9.2.7 the Goods are expressly identified as being excluded from this returns policy; or
9.2.8 the returns procedure set out in clause 9.3 has not been followed.
9.3 A Customer wishing to return Goods shall first ask the Company in writing, at the address recorded in clause 22.2, whether a return is possible, specifying the product number, the quantity ordered, and the delivery note and invoice numbers. The Company shall then decide whether the Goods may be returned and shall either consent to or reject the return in writing.
9.4 If the Company consents to the return of Goods, the Goods shall be returned by the Customer within 7 (seven) calendar days of the date of the Company’s notification. The return shall be the responsibility of the Customer and shall be at the Customer’s sole risk and expense.
9.5 The Company shall not accept a return, and shall return the Goods to the Customer at the Customer’s risk and expense, if the Goods are received after the period referred to in clause 9.4, are sent to the Company without carriage costs paid, are sent without the Company’s prior written consent, or fall within the exclusions set out in clause 9.2.
9.6 The Customer shall bear the risk of proper transportation (including correct pallet size), deterioration, damage and loss until the returned Goods are received by the Company.
9.7 The Company shall record all accepted returns by way of a credit note. The Net Value of the Goods, less a restocking fee of 10% (ten percent) of that Net Value, shall be credited to the Customer. The credit note shall be applied against the Customer’s next invoice or, on the Customer’s written request, refunded to a bank account nominated by the Customer in writing.
9.8 Where Goods have been commissioned and invoiced but not yet dispatched, an accepted return shall be recorded by way of a credit note less a restocking fee of 3% (three percent) of the Net Value of the Goods. For the rest, clause 9.7 shall apply mutatis mutandis.
9.9 The Company may amend this returns policy from time to time. The policy applicable to an Order shall be the policy in force on the date on which the Company confirmed that Order.
9.10 To the extent of any conflict between this clause 9 and the CPA, the provisions of the CPA shall prevail.
9.11 Clauses 9.2.2, 9.2.5, 9.4, 9.5, 9.6, 9.7 and 9.8 do not apply to the return of Goods that are defective or that do not conform to the Contract Specification. Such Goods are returned in accordance with clause 10.4, at the Company’s risk and expense, and no restocking fee is deducted.
10. DEFECTS
10.1 IT IS A PRE-CONDITION OF THE CUSTOMER’S RIGHTS IN RESPECT OF DEFECTS THAT THE CUSTOMER INSPECTS THE GOODS ON RECEIPT WITHOUT UNDUE DELAY AND GIVES THE COMPANY WRITTEN NOTICE, SPECIFYING THE DEFECT: (A) IN THE CASE OF DEFECTS THAT ARE REASONABLY APPARENT ON INSPECTION, WITHIN 10 (TEN) BUSINESS DAYS OF DELIVERY; AND (B) IN THE CASE OF DEFECTS THAT ARE NOT REASONABLY APPARENT ON INSPECTION, WITHIN 10 (TEN) BUSINESS DAYS OF THE CUSTOMER DISCOVERING THE DEFECT AND IN ANY EVENT WITHIN THE APPLICABLE WARRANTY PERIOD REFERRED TO IN CLAUSE 12. THE SAME APPLIES TO INCORRECT DELIVERIES AND TO SHORT DELIVERIES.
10.2 Where the Customer notifies the Company of a defect, the Customer shall arrange a fact-finding investigation as soon as reasonably possible and forward the results to the Company directly. The Company may inspect the Goods and the site at which they are installed.
10.3 WHERE IT IS ALLEGED THAT ANY GOODS ARE UNSAFE OR DEFECTIVE, THE COMPANY SHALL NOT BE LIABLE FOR HARM CAUSED WHERE THE ALLEGED CHARACTERISTIC, FAILURE, DEFECT OR HAZARD DID NOT EXIST IN THE GOODS AT THE TIME AT WHICH THEY WERE SUPPLIED TO THE CUSTOMER BY THE COMPANY. WHERE NO NOTIFICATION IS GIVEN IN TERMS OF CLAUSE 10.1, THAT SHALL CONSTITUTE SUFFICIENT (PRIMA FACIE) PROOF THAT NO DEFECT WAS PRESENT AT THE TIME OF DELIVERY AND THAT THE GOODS WERE DELIVERED IN ACCORDANCE WITH THE AGREEMENT.
10.4 Where the Company receives notification in terms of clause 10.1 and is satisfied that the Goods are defective or do not conform to the Contract Specification, the Company shall, at its election, replace the affected Goods with Goods of an equal quantity and specification, repair the affected Goods, or refund the applicable portion of the Contract Price against return of the affected Goods. Any such return is at the Company’s risk and expense.
10.5 The Company shall not be liable for any increase in carriage costs arising because the Goods are located at a place other than the intended place of use, or because the Goods have been transported outside the Republic of South Africa.
10.6 To the extent of any conflict between this clause 10 and the CPA, the provisions of the CPA shall prevail.
11. RETENTION OF TITLE AND RESERVATION OF OWNERSHIP
11.1 Notwithstanding delivery of the Goods to the Customer, ownership of the Goods shall remain vested in the Company, or in any cessionary to whom the Company cedes its rights, until the Customer has paid the full Contract Price and all other amounts due by the Customer in terms of the Agreement, together with all interest and costs.
11.2 The reservation of ownership in clause 11.1 extends to all amounts owing by the Customer to the Company from time to time on any account, whether or not those amounts arise from the sale of the particular Goods concerned.
11.3 If the Customer defaults in payment and fails to remedy that default within the period allowed by clause 14.1.1, the Customer shall deliver the Goods to the Company without undue delay on written demand by the Company.
11.4 Following a breach of the kind contemplated in clause 14.1, and without limiting any other remedy available to it, the Company may elect to enforce the Agreement or to cancel it and cancel the sale of any further Goods or Services to the Customer, and may rely on this clause to repossess Goods sold and delivered to the Customer, or claim specific performance of all the Customer’s obligations whether or not those obligations have fallen due for performance, in either case without prejudice to the Company’s right to claim damages.
11.5 A demand for repossession, and repossession itself, shall not constitute cancellation of the Agreement. After repossession, the Company may realise the Goods, including by private treaty. The proceeds of realisation, less the reasonable costs of realisation, are set off against the Customer’s liabilities to the Company.
11.6 The Customer shall handle Goods in which the Company retains ownership with care and shall insure them at their reinstatement value against damage caused by fire, water and theft, at the Customer’s cost. The Customer shall provide proof of that insurance on the Company’s written request.
11.7 If Goods in which the Company retains ownership are attached, or are otherwise subjected to the claims or interventions of third parties, the Customer shall inform the Company in writing without undue delay. The Customer is liable to the Company for the judicial and extra-judicial costs of any action necessary as a result of those third party legal actions.
11.8 Installation and accession. The Customer shall keep Goods in which the Company retains ownership separately identifiable and, so far as reasonably possible, capable of being severed without material damage, until the Contract Price has been paid in full. THE CUSTOMER SHALL NOT INSTALL, AFFIX OR ATTACH SUCH GOODS TO ANY IMMOVABLE PROPERTY BEFORE PAYMENT IN FULL WITHOUT THE COMPANY’S PRIOR WRITTEN CONSENT. Where the Goods are to be installed on immovable property that is not owned by the Customer, the Customer shall notify the Company in writing before installation and shall, on the Company’s request, procure a written acknowledgement from the owner of that immovable property that ownership of the Goods shall remain vested in the Company until the Contract Price has been paid in full. THE CUSTOMER HEREBY INDEMNIFIES THE COMPANY AGAINST ANY LOSS ARISING FROM THE CUSTOMER’S FAILURE TO COMPLY WITH THIS CLAUSE 11.8.
11.9 If the Customer processes or transforms Goods in which the Company retains ownership, the Customer does so for the Company and on its behalf. If the Goods are processed with items not belonging to the Company, the Company acquires joint ownership of the new item in the same proportion as the value of the Goods bears to the value of the other processed items at the time of processing. In all other cases, the new item resulting from the processing shall be governed by the same provisions as the Goods, and the reservation of ownership shall remain effective.
12. WARRANTIES AND REPRESENTATIONS
12.1 Unless otherwise agreed in writing or stated in the product specification, the standard warranty period for Company Brand Products is 24 (twenty-four) months, calculated from the date of the Tax Invoice.
12.2 For all other Goods, the manufacturer’s warranty terms and conditions apply. Where those terms do not specify a warranty period, a period of 12 (twelve) months from the date of the Tax Invoice shall apply. The Company shall use reasonable endeavours to assist the Customer in pursuing a claim under that warranty.
12.3 Second-hand Goods are sold voetstoots (as is), in the specific condition described on the Tax Invoice or in the Order Confirmation. The Customer acknowledges that it has been expressly informed of that condition and has agreed to accept the Goods in that condition.
12.4 SUBJECT TO CLAUSES 1.7, 12.1 AND 12.2, AND TO THE EXTENT PERMITTED BY LAW, THE COMPANY GIVES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY GIVES NO WARRANTY AS TO COMPLIANCE WITH LAWS, REGULATIONS, STANDARDS OR CONVENTIONS, INCLUDING THOSE RELATING TO THE ENVIRONMENT OR TO THE PACKAGING, LABELLING OR TRANSPORT OF HAZARDOUS GOODS. NO WARRANTY APPLIES TO SHIPPING DAMAGE OCCURRING AFTER RISK HAS PASSED TO THE CUSTOMER, DAMAGE CAUSED BY IMPROPER INSTALLATION OR IMPROPER WIRING (INCLUDING INCORRECT ELECTRICAL VOLTAGE), GOODS THAT HAVE BEEN MODIFIED OR ALTERED IN ANY WAY, DAMAGE CAUSED BY CORROSION, ABRASION OR EXTREME TEMPERATURES, OR GOODS THAT HAVE BEEN SUBJECTED TO IMPROPER MAINTENANCE, ABUSE, MISUSE, ABNORMAL USE OR ACCIDENT.
12.5 THE CUSTOMER WARRANTS THAT IT SHALL COMPLY FULLY WITH ALL LABEL DIRECTIONS AND MANUFACTURER INSTRUCTIONS FOR THE HANDLING, STORAGE, POSSESSION AND USE OF THE GOODS, AND HEREBY INDEMNIFIES AND HOLDS THE COMPANY HARMLESS AGAINST ALL CLAIMS (INCLUDING REASONABLE LEGAL COSTS) FOR PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM ANY NEGLIGENCE, RECKLESSNESS OR WILFUL MISCONDUCT ON THE PART OF THE CUSTOMER, OR FROM ANY FAILURE BY THE CUSTOMER TO COMPLY WITH THIS CLAUSE.
12.6 Specifications, illustrations and similar materials remain the property of the Company, may be used only for the purpose specified in the Agreement, and shall be returned to the Company on request.
12.7 WHERE THE COMPANY SUPPLIES GOODS MANUFACTURED IN ACCORDANCE WITH THE CUSTOMER’S SPECIFICATIONS, THE COMPANY SHALL TAKE ALL REASONABLE STEPS TO ENSURE THAT THE GOODS ARE MANUFACTURED IN ACCORDANCE WITH THOSE SPECIFICATIONS, BUT DOES NOT WARRANT THAT THE GOODS SHALL BE FIT FOR THE PARTICULAR PURPOSE FOR WHICH THE CUSTOMER INTENDS TO USE THEM, UNLESS THE CUSTOMER HAS INFORMED THE COMPANY IN WRITING OF THAT PARTICULAR PURPOSE BEFORE THE ORDER IS CONFIRMED AND THE COMPANY HAS AGREED IN WRITING TO SUPPLY GOODS FIT FOR THAT PURPOSE.
12.8 THE COMPANY SHALL NOT BE LIABLE FOR DAMAGE RESULTING FROM UNSUITABLE OR IMPROPER USE, IMPROPER ASSEMBLY, IMPROPER COMMISSIONING OR HANDLING BY THE CUSTOMER OR BY THIRD PARTIES, ANY DISREGARD OF INSTALLATION AND OPERATING INSTRUCTIONS OR OF GENERALLY ACCEPTED TECHNICAL STANDARDS, OR NORMAL OPERATIONAL WEAR AND TEAR.
12.9 The Company renders the Services on the basis of the data and information provided by the Customer and shall use reasonable skill, care and diligence in doing so. THE COMPANY DOES NOT GUARANTEE ANY PARTICULAR RESULT WHEN RENDERING THE SERVICES OR WHEN PROVIDING RECOMMENDATIONS, AND IS NOT RESPONSIBLE OR LIABLE FOR THE FUNCTIONALITY OR PERFORMANCE OF AN INSTALLED SOLAR PHOTOVOLTAIC SYSTEM (WITH OR WITHOUT A STORAGE SOLUTION) WHERE THAT SYSTEM WAS NOT INSTALLED BY THE COMPANY, OR WHERE THE DATA OR INFORMATION PROVIDED BY THE CUSTOMER WAS INCOMPLETE OR INACCURATE.
13. LIMITATION OF LIABILITY
13.1 SUBJECT TO CLAUSES 1.7 AND 13.4, NEITHER THE COMPANY NOR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL LOSS OR DAMAGE, WHETHER FORESEEABLE OR UNFORESEEABLE, INCLUDING LOSS OF BUSINESS, GOODWILL, PROFIT, INCOME, PRODUCTION OR USE OF THE GOODS OR SERVICES, OR IMPAIRMENT OF OTHER ASSETS, ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE OR OTHERWISE IN CONNECTION WITH OR ARISING OUT OF THE AGREEMENT, INCLUDING ANY BREACH BY A SERVICE PROVIDER ACTING FOR THE COMPANY.
13.2 SUBJECT TO CLAUSES 1.7 AND 13.4, THE LIABILITY OF THE COMPANY IN RESPECT OF ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT, DELICT OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT INVOICED BY THE COMPANY IN RESPECT OF THE SPECIFIC GOODS OR SERVICES THAT GAVE RISE TO THAT CLAIM.
13.3 WHERE THE CUSTOMER INCORPORATES, OR CAUSES OTHERS TO INCORPORATE, THE GOODS INTO ITS OWN GOODS OR THE GOODS OF ANY THIRD PARTY, THE COMPANY SHALL NOT BE LIABLE FOR THIRD PARTY CLAIMS FOR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RESULTING FROM THAT INCORPORATION, EXCEPT WHERE SUCH LIABILITY IS REQUIRED BY APPLICABLE LAW AND MAY NOT BE WAIVED. THE CUSTOMER ASSUMES RESPONSIBILITY FOR ALL PERSONAL INJURY AND PROPERTY DAMAGE RESULTING FROM ITS HANDLING, POSSESSION, USE, RESALE OR DISPOSAL OF THE GOODS.
13.4 NOTHING IN THESE GTCs EXCLUDES OR LIMITS THE LIABILITY OF THE COMPANY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY THE COMPANY’S NEGLIGENCE; (B) THE COMPANY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT; (C) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (D) ANY OTHER LIABILITY THAT MAY NOT LAWFULLY BE EXCLUDED OR LIMITED, INCLUDING LIABILITY IN TERMS OF SECTION 61 OF THE CPA.
13.5 ANY CLAIM BY THE CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT SHALL BE INSTITUTED WITHIN 1 (ONE) YEAR OF THE DATE ON WHICH THE CAUSE OF ACTION AROSE, FAILING WHICH THE CLAIM SHALL BE EXTINGUISHED. THIS CLAUSE SHALL NOT APPLY TO: (A) A CLAIM IN TERMS OF SECTION 61 OF THE CPA, TO WHICH THE PERIOD PRESCRIBED BY SECTION 61(4)(d) OF THE CPA APPLIES; OR (B) A CLAIM IN RESPECT OF A DEFECT NOTIFIED TO THE COMPANY IN ACCORDANCE WITH CLAUSE 10.1 WITHIN THE APPLICABLE WARRANTY PERIOD, WHICH CLAIM SHALL BE INSTITUTED WITHIN 1 (ONE) YEAR OF THE DATE OF THAT NOTIFICATION.
14. BREACH
14.1 If:
14.1.1 the Customer breaches any provision of these GTCs, or fails to pay any amount due and payable on the due date, and fails to remedy that breach or make that payment within 10 (ten) Business Days of written notice from the Company requiring it to do so;
14.1.2 the Customer dies or ceases to exist;
14.1.3 the Customer is placed under provisional or final winding-up, or the Customer’s estate is provisionally or finally sequestrated, as the case may be; or
14.1.4 the Customer commences business rescue proceedings, adopts a resolution to begin business rescue proceedings, or proposes a compromise with its creditors,
then, without prejudice to any other remedy available to it, the Company may cancel the Agreement and cancel the sale of any further Goods and/or Services to the Customer, may rely on clause 11 to repossess Goods sold and delivered by the Company to the Customer, or may claim specific performance of all the Customer’s obligations whether or not those obligations have fallen due for performance, in each case without prejudice to the Company’s right to claim damages.
14.2 The Company’s exercise of its rights in terms of clause 14.1 is subject to any moratorium applying in terms of section 133 of the Companies Act 71 of 2008.
15. REMEDIES
15.1 SUBJECT TO CLAUSES 1.7 AND 13.4, THE CUSTOMER’S EXCLUSIVE REMEDY FOR SHORT DELIVERY, DAMAGED OR DEFECTIVE GOODS (WHETHER OR NOT ARISING AS A RESULT OF THE COMPANY’S ALLEGED NEGLIGENCE), FAILURE TO PROVIDE THE SERVICES, OR ANY OTHER CAUSE OF ACTION ARISING OUT OF THE AGREEMENT, INCLUDING BREACH OF WARRANTY, SHALL BE LIMITED, AT THE COMPANY’S ELECTION, TO REPAIR OR REPLACEMENT OF THE NON-CONFORMING GOODS, RE-PERFORMANCE OF THE SERVICES, OR PAYMENT OF AN AMOUNT NOT EXCEEDING THE AMOUNT INVOICED BY THE COMPANY FOR THE GOODS OR SERVICES IN RESPECT OF WHICH THE CLAIM IS MADE.
15.2 The Customer’s remedy of repair, replacement or refund shall be available only where the non-conformance was not caused by the Customer or by accident, fire or other hazard.
16. INDEMNITY
SUBJECT TO CLAUSES 1.7 AND 13.4, THE CUSTOMER HEREBY INDEMNIFIES AND AGREES TO HOLD HARMLESS AND DEFEND THE COMPANY AND THE COMPANY’S DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, AND THE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF ANY HOLDING, SUBSIDIARY OR RELATED COMPANY OF THE COMPANY, AGAINST ANY AND ALL CLAIMS, SUITS, LOSSES, DAMAGES, COSTS, FEES AND EXPENSES ARISING OUT OF THE DEATH OF OR INJURY TO ANY PERSON, OR DAMAGE TO PROPERTY, RESULTING FROM THE SALE, MARKETING, INSTALLATION OR USE OF THE GOODS AND/OR SERVICES BY THE CUSTOMER, EXCEPT TO THE EXTENT THAT SUCH CLAIMS, SUITS, LOSSES, DAMAGES, COSTS, FEES OR EXPENSES AROSE OR RESULTED FROM THE NEGLIGENCE, GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF THE COMPANY OR OF A SERVICE PROVIDER.
17. INSTALLATION, HEALTH AND SAFETY, AND ELECTRICAL COMPLIANCE
17.1 Where the Company or a Service Provider performs Services at premises under the control of the Customer, the Parties shall conclude a written agreement in terms of section 37(2) of the Occupational Health and Safety Act 85 of 1993 before work commences, recording the arrangements agreed between them to ensure compliance with that Act.
17.2 The Customer shall provide safe access to the site, accurate information regarding the site and any existing electrical installation, and all approvals, permits and consents required for the installation.
17.3 Unless the Order Confirmation states otherwise, the Customer shall be responsible for obtaining the Certificate of Compliance required in terms of the Electrical Installation Regulations, 2009 promulgated under the Occupational Health and Safety Act 85 of 1993, and for ensuring that all electrical work is performed by a registered person.
17.4 Unless the Order Confirmation states otherwise, the Customer shall be responsible for registering any grid-tied or embedded generation installation with the relevant municipality, distributor or the National Energy Regulator of South Africa, and for complying with all applicable conditions of that registration. THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS ARISING FROM THE CUSTOMER’S FAILURE TO OBTAIN OR MAINTAIN ANY SUCH CERTIFICATE, APPROVAL OR REGISTRATION.
17.5 The Company may appoint Service Providers to perform any part of the Services. The Company shall remain responsible to the Customer for Services performed by a Service Provider, subject always to clauses 13 and 15.
18. LEGAL COSTS
In the event of the Company instructing attorneys in regard to any breach by the Customer of any of the terms of the Agreement, the Customer shall be liable for and shall pay all legal costs incurred by the Company on the scale as between attorney and own client, including collection commission, tracing fees and all costs incidental to any action instituted against the Customer.
19. CERTIFICATE OF INDEBTEDNESS
19.1 A CERTIFICATE UNDER THE HAND OF ANY DIRECTOR OR OF THE FINANCIAL MANAGER OF THE COMPANY AS TO THE EXISTENCE AND THE AMOUNT OF THE CUSTOMER’S INDEBTEDNESS TO THE COMPANY, THE AMOUNT OF ANY INTEREST ACCRUED THEREON, AND ANY OTHER FACT, MATTER OR THING RELATING TO THAT INDEBTEDNESS, SHALL BE ACCEPTED AS SUFFICIENT (PRIMA FACIE) PROOF OF THE CONTENTS AND ACCURACY THEREOF, SAVE FOR MANIFEST ERROR, AND SHALL BE VALID AS A LIQUID DOCUMENT AGAINST THE CUSTOMER FOR THE PURPOSE OF PROVISIONAL SENTENCE, SUMMARY JUDGMENT OR ANY OTHER PROCEEDINGS AGAINST THE CUSTOMER IN ANY COMPETENT COURT.
19.2 Furthermore, it shall not be necessary to prove the appointment or authority of the person signing any such certificate.
20. DISPUTE RESOLUTION AND JURISDICTION
20.1 Subject to clause 20.2, the Parties hereby consent, in terms of section 45 of the Magistrates’ Courts Act 32 of 1944, to the jurisdiction of the Magistrate’s Court for the district in which the Company’s domicilium citandi et executandi is situated, in respect of any action or proceedings arising out of or in connection with the Agreement. THIS CONSENT IS WITHOUT PREJUDICE TO THE COMPANY’S RIGHT TO INSTITUTE PROCEEDINGS IN ANY DIVISION OF THE HIGH COURT OF SOUTH AFRICA HAVING JURISDICTION, PARTICULARLY WHERE THE AMOUNT IN DISPUTE EXCEEDS THE MONETARY JURISDICTION OF THE MAGISTRATE’S COURT.
20.2 Where a dispute is of a purely technical or engineering nature, either Party may refer the dispute to arbitration on written notice to the other. The arbitration shall be held in Pretoria and conducted in accordance with the rules of the Arbitration Foundation of Southern Africa (AFSA) by a single arbitrator agreed between the Parties or, failing agreement within 10 (ten) Business Days, appointed by the Secretariat of AFSA. The arbitrator’s award shall be final and binding on the Parties, subject to the Arbitration Act 42 of 1965.
20.3 Nothing in this clause prevents a Party from applying to a court of competent jurisdiction for urgent interim relief.
20.4 The Agreement, and the relationship between the Company and the Customer, shall be governed by the laws of the Republic of South Africa.
21. SEVERABILITY
If any provision of these GTCs is held to be invalid, unlawful or unenforceable, the validity of the remaining provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if these GTCs did not contain that provision. The provisions of these GTCs and their application are, to this extent, hereby declared to be severable.
22. NOTICES AND DOMICILIA
22.1 Any notice given in terms of the Agreement shall be in writing and shall be delivered by hand during ordinary business hours, sent by email, or sent by prepaid registered post to the addresses recorded below, which the Parties hereby choose as their domicilium citandi et executandi for all purposes arising out of the Agreement.
22.2 The Company:
Physical address: 28 Bordeaux, Alto Villa, Pretoria, 0844, South Africa
Email address: admin@sonahgroup.com
22.3 The Customer: the physical address reflected on the latest Order Confirmation, Delivery Note or Tax Invoice issued to the Customer, which the Customer chooses as its domicilium citandi et executandi, together with the email address so reflected; or such other addresses as the Customer notifies to the Company in writing.
22.4 A notice shall be deemed to have been received:
22.4.1 if delivered by hand during ordinary business hours, on the date of delivery;
22.4.2 if sent by email, on the first Business Day after the date of transmission, provided that no delivery-failure message is received by the sender; and
22.4.3 if sent by prepaid registered post, on the 7th (seventh) Business Day after the date of posting.
22.5 A Party may change its domicilium to another physical address in the Republic of South Africa, or change its email address, on 10 (ten) Business Days’ written notice to the other Party.
22.6 Notwithstanding anything to the contrary in this clause, a notice actually received by a Party shall be valid notwithstanding that it was not sent to or delivered at that Party’s chosen address.
23. CONFIDENTIALITY
23.1 Each Party shall keep confidential all non-public information of the other Party disclosed in connection with the Agreement, including pricing, technical information, designs, methodologies and customer information, and may use that information only for the purposes of the Agreement.
23.2 The obligation in clause 23.1 shall not apply to information that is or becomes public other than through a breach of this clause, that was lawfully in the recipient’s possession before disclosure, that is independently developed by the recipient, or that is required to be disclosed by law or by a regulator, provided that the disclosing Party is notified where it is lawful to do so.
23.3 The provisions of this clause 23 shall survive the termination or cancellation of the Agreement and shall remain in force for a period of 3 (three) years thereafter.
24. PROCESSING OF PERSONAL INFORMATION
24.1 The Customer’s privacy is important to the Company. The Company shall take appropriate, reasonable technical and organisational measures, as contemplated in section 19 of POPIA, to secure the integrity and confidentiality of Personal Information in its possession or under its control.
24.2 The Customer shall give honest, accurate and current information to the Company and shall maintain and update that information when necessary.
24.3 The Company processes Personal Information on the following lawful bases: where processing is necessary to conclude or perform the Agreement (section 11(1)(b) of POPIA); where processing complies with an obligation imposed by law (section 11(1)(c)); where processing is necessary for pursuing the legitimate interests of the Company or of a third party to whom the information is supplied (section 11(1)(f)); and, where none of these applies, on the basis of the data subject’s consent (section 11(1)(a)).
24.4 The Company may process Personal Information for the following purposes, without limitation:
24.4.1 the carrying out and operation of the Company’s business;
24.4.2 compliance with applicable law and with the Company’s legal obligations, and the protection of its legitimate business interests;
24.4.3 compliance with statutory and regulatory requirements regarding the storage and maintenance of documents and information;
24.4.4 compliance with valid requests for information, including requests in terms of the Promotion of Access to Information Act 2 of 2000;
24.4.5 compliance with information requests by regulators or other bodies lawfully requesting the information;
24.4.6 internal purposes such as training and monitoring;
24.4.7 the establishment, exercise or defence of legal rights, or in connection with actual or threatened legal proceedings;
24.4.8 fraud prevention, and the investigation, detection or prosecution of criminal offences, including safeguarding against threats to public security;
24.4.9 disclosure to a relevant third party acquirer in the event that the Company sells or transfers all or any portion of its business or assets, including in a reorganisation, dissolution or liquidation;
24.4.10 relationship management, account management and marketing in relation to the Company’s business, subject to clause 24.14;
24.4.11 statistical purposes;
24.4.12 transfer to Service Providers and other third parties for the purposes set out in this clause; and
24.4.13 recruitment.
24.5 The Company may collect or obtain Personal Information about the Customer directly from the Customer; in the course of its business relationship with the Customer; in the course of providing Goods and Services to the Customer or the Customer’s organisation; when the Customer makes Personal Information public; when the Customer visits or interacts with the Company’s website or social media platforms; when the Customer registers to use any of the Company’s products or services, including newsletters or other promotional material; when the Customer interacts with third party content or advertising on the Company’s website; and when the Customer visits the Company’s premises.
24.6 The Company may also receive Personal Information about the Customer from third parties, for example law enforcement authorities and public databases.
24.7 The Company may transfer Personal Information to a recipient in a foreign country only where one of the grounds set out in section 72 of POPIA applies, including where the recipient is subject to a law, binding corporate rules or a binding agreement that provides an adequate level of protection substantially similar to POPIA, or where the transfer is necessary for the performance of the Agreement.
24.8 WHERE THE CUSTOMER PROVIDES THE COMPANY WITH PERSONAL INFORMATION RELATING TO ITS DIRECTORS, EMPLOYEES, AGENTS OR CUSTOMERS, THE CUSTOMER WARRANTS THAT IT IS LAWFULLY ENTITLED TO DO SO, THAT IT HAS GIVEN THOSE DATA SUBJECTS THE NOTICE REQUIRED BY SECTION 18 OF POPIA, AND THAT IT HAS OBTAINED ANY CONSENT REQUIRED. THE CUSTOMER HEREBY INDEMNIFIES THE COMPANY AGAINST ANY CLAIM ARISING FROM A BREACH OF THIS WARRANTY.
24.9 Where processing is based on consent, the data subject may withdraw that consent at any time by written notice to the Company’s Information Officer. Withdrawal of consent shall not affect the lawfulness of processing carried out before withdrawal, and shall not affect processing that the Company is entitled or required to continue on another lawful basis.
24.10 A data subject may request access to, correction of, or deletion of Personal Information held by the Company, may object to processing, and may lodge a complaint with the Information Regulator. Requests shall be addressed to the Company’s Information Officer.
24.11 Where the Company engages a Service Provider or other operator to process Personal Information on its behalf, it shall conclude a written agreement with that operator as required by section 21 of POPIA.
24.12 The Company shall notify the Customer and the Information Regulator of any compromise of Personal Information as required by section 22 of POPIA.
24.13 The Company shall retain Personal Information only for as long as is necessary for the purposes for which it was collected, or for such longer period as is required or permitted by law.
24.14 Direct marketing by means of electronic communication shall be conducted in accordance with section 69 of POPIA. The Customer may opt out of receiving marketing communications from the Company at any time, at no cost.
24.15 The Company’s Information Officer is Leonidas Hanos, contactable at admin@sonahgroup.com. Further information about how the Company processes Personal Information is set out in the Company’s Privacy Policy and PAIA Manual, available from the Company on request.
25. EXPORT CONTROL, SANCTIONS AND ANTI-BRIBERY
25.1 The Customer shall comply with all applicable foreign trade and export control regulations, including those of the Republic of South Africa and, in respect of Goods originating outside the Republic of South Africa, those of the country of origin and of any country through which the Goods are routed, to the extent that they apply to Goods supplied by the Company. This includes the National Conventional Arms Control Act 41 of 2002 and the Non-Proliferation of Weapons of Mass Destruction Act 87 of 1993.
25.2 The Customer shall refrain from doing business in connection with nuclear, biological or chemical weapons or any military end-use, and shall maintain neither direct nor indirect business relations nor other connections with terrorists, terrorist organisations, or other criminal or unlawful organisations.
25.3 The Customer shall take appropriate organisational measures to ensure the implementation of applicable embargoes and sanctions, including European Union regulations on combating terrorism and crime applicable in the context of the supply relationship, and corresponding United States or other applicable provisions, including by maintaining appropriate screening systems.
25.4 Where Goods supplied by the Company originate in the European Union, the Customer shall not sell, export or re-export, directly or indirectly, any such Goods that fall within the scope of Article 12g of Council Regulation (EU) No 833/2014 to the Russian Federation or for use in the Russian Federation (the “No-Russia Clause”). The same shall apply to Goods falling within the scope of Article 8g of Council Regulation (EC) No 765/2006, which shall not be sold, exported or re-exported, directly or indirectly, to Belarus or for use in Belarus (the “No-Belarus Clause”).
25.5 The Customer shall make every effort to ensure that the purpose of the No-Russia Clause and the No-Belarus Clause is not frustrated by third parties in the wider trade chain, including potential resellers, and shall put in place and maintain an appropriate monitoring mechanism to detect conduct by such third parties that would frustrate that purpose.
25.6 Once the Goods have left the Company’s premises, the Customer shall be solely responsible for compliance with this clause 25 and HEREBY INDEMNIFIES THE COMPANY AGAINST ALL CLAIMS AND COSTS, INCLUDING REASONABLE LEGAL AND CONSULTANTS’ FEES, ADMINISTRATIVE FEES AND FINES, ARISING FROM ANY BREACH OF THE RELEVANT REGULATIONS BY THE CUSTOMER, ITS AFFILIATES, EMPLOYEES, REPRESENTATIVES OR AGENTS.
25.7 The Customer shall notify the Company immediately of any difficulty in the application of this clause, including any third party activity that could frustrate the purpose of the regulations referred to in it.
25.8 The Customer shall provide the Company with information on its compliance with the obligations in this clause within 2 (two) weeks of a written request by the Company.
25.9 A breach by the Customer of any export control, sanctions or embargo regulation entitles the Company to cancel the Agreement immediately on written notice.
25.10 Each Party shall comply with all applicable anti-bribery and anti-corruption laws, including the Prevention and Combating of Corrupt Activities Act 12 of 2004, and shall not offer, give, request or accept any improper benefit in connection with the Agreement.
26. GENERAL
26.1 The Agreement shall constitute the entire agreement between the Parties in respect of its subject matter. No representation made by either Party or its agents, whether before or after the conclusion of the Agreement, shall be binding upon either Party unless recorded in writing and signed by both Parties.
26.2 Save as provided in clause 1.4, no variation, alteration or consensual cancellation of the Agreement or of any of its terms is of any force or effect unless recorded in writing and signed by both Parties.
26.3 No waiver or abandonment by a Party of any of its rights in terms of the Agreement shall be binding upon that Party unless the waiver or abandonment is recorded in writing and signed by the waiving Party.
26.4 No indulgence, extension of time, relaxation or latitude that a Party may show, grant or allow to the other shall constitute a waiver of that Party’s rights, and that Party is not precluded or estopped from exercising any right that has arisen in the past or that may arise in the future.
26.5 The Customer shall not cede, assign, delegate or otherwise transfer any of its rights or obligations under the Agreement without the Company’s prior written consent. The Company may cede or assign its rights under the Agreement, including to a financier, on written notice to the Customer.
26.6 The Parties shall do all things and sign all documents necessary to give effect to the terms of the Agreement and to all transactions deriving from it.
27. WARNING - SAFE USE OF THE GOODS
27.1 CERTAIN OF THE GOODS SOLD MAY, BY THEIR VERY NATURE, CAUSE SERIOUS INJURY OR DEATH IF NOT CORRECTLY INSTALLED OR USED. IT IS THEREFORE IMPERATIVE THAT THE OPERATING MANUAL AND/OR DIRECTIONS FOR USE PROVIDED BY THE MANUFACTURER AND/OR THE COMPANY ARE STRICTLY FOLLOWED AND ADHERED TO.
27.2 It is the duty of the Customer to ensure that it is in possession of the applicable operating manual and directions for use, and that any person handling, installing or commissioning the Goods is appropriately qualified and, where applicable, registered to do so.
28. ACKNOWLEDGEMENT BY THE CUSTOMER
By placing an Order, by accepting delivery of Goods, or by accepting performance of Services, the Customer acknowledges that it has read and understood these GTCs; that the provisions appearing in bold, capitalised text, which may limit the Company’s liability, impose risk or an indemnity on the Customer, or constitute an acknowledgement of fact by the Customer, were drawn to its attention; that it was given an opportunity to ask the Company for an explanation of any provision and to obtain independent advice; and that it accepts and agrees to be bound by these GTCs.