These Standard Terms and Conditions form part of the agreement which governs the relationship between the Parties. The acceptance of the services as detailed in a proposal will be deemed as the Customer’s acceptance of the Standard Terms and Conditions governing the relationship between the Parties.

 

1. THE SERVICES

1.1. The specific services to be performed by Altron Karabina will be set out in a proposal, which when read together with these Standard Terms and Conditions, shall constitute the entire agreement between the Parties in respect of the services.

1.2. When Altron Karabina personnel are required to perform the services onsite at the Customer’s premises, the Customer must provide reasonable accommodation and facilities including –
1.2.1. safe and secure office space to house the necessary Altron Karabina equipment;
1.2.2. safe parking and access to Customer facilities;
1.2.3. availability of the specified hardware and software;
1.2.4. communication facilities (telephone, LAN, internet connectivity);
1.2.5. adequate network performance.

1.3. Either Party may request a change to the services by giving written notice to the other Party describing the change and the reasons requesting such change in sufficient detail to enable the other Party to understand the possible impact of the proposed change (“Change Request”)

1.4. Unless otherwise agreed, the Parties will meet within 7 (seven) days of notification of the Change Request to determine whether or not the request shall be progressed.

1.5. Should the Parties resolve at the meeting contemplated in clause 1.3 that it shall progress the Change Request, then Altron Karabina shall promptly undertake an exercise to determine the impact of the proposed change and shall within 7 (seven) days (or such other period as may be agreed between the Parties) of the meeting referred to in clause 1.3, deliver the Change Request to the Customer incorporating all such information as may reasonably be required by the Customer to determine whether or not to implement the Change Request, including, without limitation –
1.5.1. the impact of the Change Request on the services;
1.5.2. the impact of the Change Request on the resources or personnel to be supplied to the Customer;
1.5.3. a plan for the implementation of the subject matter of the Change Request; and
1.5.4. any consequential changes which may be required to the agreement.

1.6. Nothing in this clause 1 shall be construed as obliging either Party to agree to any Change Request made by the other Party. No change to the services shall be of any force or effect until it is signed by duly authorised representatives of the Parties.

1.7. In the event of any conflict or inconsistency between a proposal and these Standard Terms and Conditions, the provisions of the proposal shall prevail.

 

2. CONSIDERATION AND PAYMENT

2.1. As consideration for its performance of the services, the Customer agrees to remunerate Altron Karabina in accordance with the terms of the applicable proposal. The specific amounts payable by the Customer are indicated in the proposal.

2.2. All prices exclude VAT. The Customer shall make payment of all amounts due and payable to Altron Karabina within 14 (fourteen) days from date of invoice, without deduction or set-off.

2.3. Altron Karabina reserves the right to charge default interest on all overdue amounts at 2% (two percent) per annum above the prime overdraft bank rate quoted by the Standard Bank of South Africa Limited, compounded monthly in arrears, on all overdue amounts from the date upon which such amount became due and payable to Altron Karabina until the date upon which such amount, together with all interest accrued on such amount, has been paid by the Customer to Altron Karabina in full.

2.4. Altron Karabina shall be entitled, from time to time, to increase the rates payable by the Customer, provided that Altron Karabina shall notify the Customer no less than 30 (thirty) days prior to such increase.

2.5. The cost to Altron Karabina of software or services purchased outside of South Africa may be more or less than the cost anticipated at the date when Altron Karabina ordered the relevant software or services (or obtained the Customer’s approval for such costs) as a result of fluctuations in the rate of currency exchange. If so, Altron Karabina will charge the Customer at the rate of currency exchange in operation on the date Altron Karabina pays for the relevant software or services, which will be deemed to be the Standard Bank foreign currency buy rate for the currency in the Republic of South Africa on that day. For the avoidance of doubt, this buy rate is defined as the rate received on buying the relevant foreign currency with South African Rand.

 

3. EXCUSED PERFORMANCE

3.1. Altron Karabina will be relieved from performing its directly affected obligations pursuant to this agreement if, and to the extent that the relevant non-performance directly results from the Customer’s failure to timeously provide Altron Karabina with information, documentation, feedback, responses and/or other resources reasonably required by Altron Karabina to perform the services (each a “Customer Dependency”), and Altron Karabina –
3.1.1. provides the Customer with notice of such failure, act or omission (“Relief Notice”);
3.1.2. uses commercially reasonable efforts to perform (and to minimise the impact of such non performance) notwithstanding any matters referred to in the Relief Notice; and
3.1.3. recommences performance of the services following resolution of the failure to perform the Customer Dependency.

3.2. The Relief Notice will –
3.2.1. identify the cause or causes of the delay or interruption;
3.2.2. provide details of the delay or interruption and expected duration;
3.2.3. identify clearly which services or other obligations pursuant to this agreement are to be affected and, in the reasonable opinion of Altron Karabina, the extent to which they are to be affected; and
3.2.4. identify as far as possible the extent to which Altron Karabina’s fulfilment of the relevant obligations under this agreement will be delayed, interrupted or otherwise affected.

3.3. Where the Customer’s delay or failure to perform a Customer Dependency pushes the services beyond its expected delivery date, the Customer will be liable for the costs incurred by Altron Karabina in extending the timeline for performing the services and maintaining the personnel allocated to perform the services.

 

4. INTELLECTUAL PROPERTY

4.1. All right, title and interest in all existing Intellectual Property owned, vested in, or held by a Party under any licensing agreement with any independent third party prior to the conclusion of this agreement shall be and remain the sole property of that Party or the applicable third party licensor.

4.2. Where Altron Karabina does development work at the specific request of and/or under the control of the Customer, ownership in such developed work will only pass to the Customer when Altron Karabina has received full and final payment in respect thereof. Altron Karabina further reserves the right, where fees have been invoiced and payments are outstanding, to exercise a lien in respect of those outstanding fees over any processes implemented, infrastructure, products and other solutions including any documentation relating thereto, which has been delivered to the Customer.

4.3. Any developments, modifications, improvements or enhancements to a Party’s Intellectual Property arising from this agreement will remain the property of that Party.

4.4. Each Party warrants that no aspect of its Intellectual Property lawfully utilised during the course of this agreement, will infringe the proprietary rights of any third party. In the event that the proprietary rights of any third party are infringed, the Party warranting ownership of or lawful rights to the Intellectual Property hereby indemnifies and shall hold harmless the other Party against any loss, claims or expenses (including legal fees on the scale as between attorney and own client) from an aggrieved party.

4.5. The provisions of this Clause 4 shall survive the termination of this agreement.

 

5. FURNISHING OF INFORMATION BY CUSTOMER AND TRADE REFERENCING

5.1. The Customer shall forthwith after the conclusion of this agreement, furnish Altron Karabina with all information reasonably required by Altron Karabina to enable it do business with the Customer and to comply with its obligations. The Customer warrants that all information supplied to Altron Karabina shall at all times be accurate and up to date. The Customer hereby consents to the processing by Altron Karabina of its personal information and any other information that the Customer may provide to Altron Karabina for all purposes related to fulfilling Altron Karabina’s contractual obligations (“Personal Data”), subject to all applicable laws and regulations to the extent applicable to Personal Data processed under this agreement, then in effect and applicable to Personal Data processed under this agreement including, without limitation: the Protection of Personal Information Act, Act No. 4 of 2013 (“POPIA”), Regulation 2016/679 (“GDPR”), Directive 2002/58/EC (the “ePrivacy Directive”), any laws regulating the protection and/or regulation of Personal Data, and any successor directives or regulations including without limitation any Personal Data protection laws in the UK following any exit by the UK from the European Union and all United States Federal Trade Commission (“FTC”) rules.

5.2. Where appropriate and depending on the nature of the services to be performed by Altron Karabina, the Parties will enter into and conclude an appropriate agreement to protect and regulate their respective rights and obligations relating to the protection and processing of Personal Data in accordance with POPIA.

5.3. Altron Karabina reserves the right at any time before or during the contractual relationship with the Customer to obtain trade references and to make enquiries regarding the Customer’s credit standing. In this regard the Customer undertakes to provide Altron Karabina with such information as is customary to enable Altron Karabina to make enquiries of this nature and it hereby provides its consent for Altron Karabina to make such enquiries and for the counter-parties to whom such enquiries may be addressed to provide the required information.

5.4. The Customer agrees that Altron Karabina may process its Personal Data, which processing may include the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use; or the dissemination by means of transmission, distribution or making available in any other form; or the merging, linking, as well as restriction, degradation, erasure or destruction of Personal Data of the Customer.

 

6. CONFIDENTIALITY

Notwithstanding the cancellation or termination of this agreement for any reason whatsoever, neither Party (“Receiving Party”) shall any time after the conclusion of this agreement, and without the other Party’s (“Disclosing Party”) prior consent thereto, disclose to any person or use in any manner whatsoever the Disclosing Party’s confidential information, provided that the Receiving Party may disclose the Disclosing Party’s confidential information –

6.1. to the extent required by law (other than in terms of a contractual obligation of the Disclosing Party);

6.2. to, and permit the use thereof by its employees, representatives and professional advisors to the extent strictly necessary for the purposes of implementing or enforcing this agreement, or obtaining professional advice or conducting its business, it being specifically agreed that any disclosure or use by any such employee, representative or advisor of such confidential information for any other purpose shall constitute a breach of this clause 6 by the Receiving Party; and

6.3. if the provisions of this clause 6 cease to apply to any confidential information of a Party due to the fact that such confidential information –
6.3.1. is or becomes generally available to the public other than as a result of a breach by the Receiving Party of its obligation in terms of this clause 6; or
6.3.2. is also received by the Receiving Party from a third party who did not acquire such confidential information subject to any duty of confidentiality in favour of the Disclosing Party.
6.3.3. For the purposes of this clause 6, “confidential information” shall mean any information disclosed by either Party to the Receiving Party prior to the conclusion of this agreement, in terms of this agreement or otherwise in connection with this agreement and which is not available to the public or competitors of the Disclosing Party during the ordinary course of business.

 

7. WARRANTIES AND UNDERTAKINGS

7.1. Altron Karabina warrants that the services will be performed in a professional manner and that it is and/or it shall use personnel that is appropriately experienced, suitably qualified and has sufficient knowledge, expertise and competence to perform the services, in accordance with industry standards.

7.2. Each Party represents and warrants to the other Party that –
7.2.1. it has the capacity and authority to enter into the agreement and perform its obligations thereunder and the persons entering into the agreement on its behalf have been duly authorised to do so; and
7.2.2. there is no proceeding pending or threatened, or any other event, matter, occurrence or circumstance which to such Party’s knowledge, challenges or may have a material adverse impact on this agreement or the ability of such Party to perform its obligations pursuant to this agreement.

7.3. The Customer undertakes to –
7.3.1. remunerate Altron Karabina for its services rendered in accordance with the terms of the Agreement
7.3.2. provide all necessary logistical and other support to Altron Karabina to enable it to render the services on the terms as set out in the agreement;
7.3.3. co-operate with Altron Karabina at all times for the purpose of facilitating the timeous and efficient delivery of the services, including the timeously furnishing information required by Altron Karabina to provide the services; and
7.3.4. timeously review all materials prepared by Altron Karabina under the agreement.

7.4. Altron Karabina shall, insofar as relevant, pass through all software warranties received from third party licensors or authorised distributors of the software products, to the Customer strictly on a ‘back to back’ basis only.

7.5. Save as expressly set out in clause 4.4 and this clause 7, Altron Karabina does not make any representations nor give any warranties or guarantees of any nature whatsoever in respect of the services and all warranties which are implied or residual at common law are hereby expressly excluded.

 

8. LIMITATION OF LIABILITY

8.1. Under no circumstances whatsoever, including (without limitation) as a result of its negligent acts or omissions of those of its agents or contractors or other persons for whom in law it may be liable (in whose favour this clause 8 constitutes a stipulatio alteri), shall Altron Karabina be liable to the Customer (whether in contract or delict) for any claims, losses, damages or liabilities suffered or incurred by the Customer in relation to this agreement which exceed the fees paid by the Customer to Altron Karabina pursuant to this agreement, on the basis that the aggregate amount recoverable by the Customer from Altron Karabina, from whatever cause arising, shall be limited to the aforesaid amount.

8.2. Under no circumstances shall either Party be liable to the other Party for any consequential, indirect or special loss or damage (whether the loss or the special circumstances relating thereto was actually foreseen or reasonably foreseeable), loss of profit, loss of revenues, loss of business or business opportunity, loss of anticipated savings or any destruction or loss of data (in each case, whether direct or indirect).

8.3. No claim, regardless of form, arising out of this agreement may be brought by the Customer against Altron Karabina more than 12 (twelve) months after the cause of action in respect of such claim occurred.

 

9. BREACH AND TERMINATION

9.1. If the Customer breaches any of the terms of this agreement or fails to pay any amount payable by the Customer on due date or commits any act of insolvency or endeavours to compromise generally with the Customer’s creditors or does or causes to be done anything which may prejudice Altron Karabina’s rights hereunder or at all, or allows any judgment against the Customer to remain unsatisfied or is placed into provisional or final liquidation or enters into business rescue proceedings or is placed under provisional or final sequestration or if the customer’s estate is voluntarily surrendered, Altron Karabina shall have the right, without prejudice to any other right which Altron Karabina may have against the Customer (including, without limitation, Altron Karabina’s right to claim damages from the Customer), to elect to –
9.1.1. treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the agreement and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder, as well as under any other contract with the Customer until the Customer has remedied the breach; or
9.1.2. cancel this agreement.

9.2. The expiry or termination of this agreement or any proposal will not affect any accrued rights or liabilities of either Party, nor will it affect the coming into force or remaining in force of any provision which is intended expressly or impliedly to come into or remain in force.

 

10. SETTLEMENT OF DISPUTES

10.1. Amicable Settlement
If any dispute arises between the Parties, they shall use all reasonable endeavours to resolve the matters amicably and in good faith. If a Party gives the other Party notice that a dispute has arisen and the Parties are unable to resolve such dispute with 10 (ten) days of service of such notice or as soon as possible, then such dispute shall be referred to the managing directors of the Parties. No Party shall resort to arbitration against the other Party until at least 10 (ten) days after such referral. This shall not affect a Party’s right to seek interim relief.

10.2. Arbitration
10.2.1. Unless provided for the contrary in this agreement, a dispute which arises in regard to –
10.2.1.1. the interpretation of;
10.2.1.2. the carrying into effect of;
10.2.1.3. any of the Parties’ rights and obligations arising from;
10.2.1.4. the termination or purported termination of or arising from the termination of; or
10.2.1.5. the rectification or proposed rectification of this agreement, our out of or pursuant to this agreement or on any matter which in terms of this agreement requires agreement by the Parties, (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction) and which is not resolved in accordance with clause 10.1,
shall be submitted to and decided by arbitration.
10.2.2. The arbitration shall be held with only the Parties and their representatives present and at Johannesburg, South Africa.
10.2.3. It is the intention that the arbitration shall, where possible, be held and concluded in 21 (twenty one) business days after it has been demanded. The Parties shall use their reasonable endeavours to procure the expeditious completion of the arbitration.
10.2.4. Save as expressly provided in this agreement to the contrary, the arbitration shall be subject to the arbitration legislation for the time being in South Africa.
10.2.5. There shall be one arbitrator who shall, if the question in issue is –
10.2.5.1. primarily a legal matter, a practising senior counsel or, alternatively, a practising attorney of not less than 15 (fifteen) years’ experience as an attorney; or
10.2.5.2. an accounting matter, an independent auditor agreed to in writing between the Parties (or, failing agreement within 5 (five) business days of a request therefore, such appointment shall be made by the President of the South African Institute of Chartered Accountants (or its successor body)); or
10.2.5.3. any other matter, a suitably qualified person.
10.2.6. The appointment of the arbitrator shall be agreed upon by the Parties in writing or, failing agreement by the Parties within 10 (ten) business days after the arbitration has been demanded by either of them, at the request of any of the Parties shall be nominated by the Chairman for the time being of the Arbitration Foundation of Southern Africa (or its successor body in title) (“AFSA”). If that person fails or refuses to make the nomination, any Party may approach the High Court of South Africa to make such an appointment. To the extent necessary, the court is expressly empowered to do so.
10.2.7. The Parties shall keep the evidence in the arbitration proceedings and any order made by an arbitrator confidential unless otherwise contemplated herein.
10.2.8. The arbitrator shall be obliged to give his award in writing fully supported by reasons.
10.2.9. The provisions of this clause are severable from the rest of this agreement and shall remain in effect even if this agreement is terminated for any reason.
10.2.10. The arbitrator shall have the power to give default judgment if any Party fails to make submissions on due date and/or fails to appear at the arbitration, which judgment the arbitrator shall be entitled to rescind on good cause shown in terms of the legal principles applicable to the rescission of judgments.

10.3. Notwithstanding anything to the contrary contained in this clause 10, any Party shall be entitled to apply for an interdict (or any other matter that cannot be resolved pursuant to clause 10) to be heard by any competent court having jurisdiction and Altron Karabina shall be entitled to approach any court with jurisdiction for judgment on any monies due and/or outstanding by the Customer to Altron Karabina.

 

11. REQUIRED STANDARDS AND PRINCIPLES OF ETHICAL BUSINESS CONDUCT

11.1. Allied Electronics Corporation Limited, the ultimate holding company of Altron Karabina, adheres to the highest levels of lawful, ethical and responsible business conduct and it requires its subsidiaries, as well as suppliers, customers and stakeholders of the Altron group, in their interaction with the Altron group, to adhere to similar principles. The Customer is referred to the Altron Statement of Business Principles and Conduct that can be viewed on Altron’s public internet website at www.altron.com.

11.2. The relevant principles are summarised as follows –
11.2.1. Fair competition and avoidance of anti-competitive conduct
11.2.2. Integrity in business dealings – no corruption or bribery
11.2.3. Sustainability – no inappropriate risks for human and the environment
11.2.4. Equal opportunities in securities trading – no insider trading
11.2.5. Proper record keeping and accurate financial reporting – no deception
11.2.6. Fair and respectful working conditions – no discrimination
11.2.7. Respecting the legal rights of others – no infringement of intellectual property rights
11.2.8. No conflicts of interest between business and personal rights
11.2.9. Cooperation with the authorities – no misinformation
11.2.10. Compliance with laws, regulations, rule and standards, in South Africa and elsewhere
11.2.11. Observance of ethical obligations without causing harm to others other than by fair commercial competitive practices
11.2.12. Not to supply defective or dangerous products
11.2.13. Not to improperly induce or influence someone by the provision of gifts, entertainment or other gratification
11.2.14. To report any events or suspected events of bribery, corruption, improper inducement or influencing, or any other unlawful conduct
11.2.15. To respect human rights and to uphold fair labour practices – no abuse of basic human rights or unfair labour practices (including child and forced labour).

11.3. The Customer undertakes to conduct itself in accordance with the above principles.

11.4. The Altron group distances itself from any conduct that deviates from the principles referred to in clause 11.2 and it reserves its rights not to deal with any party whose conduct is contrary to these principles. Altron Karabina therefore hereby reserves the right to terminate this agreement forthwith in the event that any information comes to its attention which causes it to conclude in its sole opinion, that in its conduct towards Altron in terms of or in connection with this agreement the Customer has engaged in an act or omission which constitutes a material breach or disregard of the above mentioned principles of lawful and ethical business conduct. Such termination shall be justified and lawful and shall not be capable of giving rise to any damages claims against or any other liability for Altron.

11.5. The Customer agrees not to pay, promise to pay or offer to pay, any commission, success fee, bribe, pay off or kickback related to the services that violates any Anti-Corruption Laws or enter into any agreement pursuant to which any such commission, success fee, bribe, pay off or kickback may, or will at any time, be paid to Altron Karabina, its employees, subcontractors, representatives, Altron Karabina’s customers or to any public official. Any breach of this clause 11.5 will be a material breach and shall entitle Altron Karabina to cancel this agreement or a proposal with immediate notice to the Customer.

11.6. The Customer may report any unethical conduct on the part of Altron Karabina’s employees, subcontractors or representatives to the Altron Ethics Line on 0800 205 352 or altronethicsline@tip-offs.com.

 

12. NON-SOLICITATION

The Parties agree that for the duration of the agreement and 12 (twelve) months thereafter, neither Party shall solicit, entice, employ or offer employment to or contract with the employees, contractors, agents or representatives of the other Party, directly or through any other entity in which either Party may have an interest in, unless the prior written consent of the other Party has been obtained. Any agreed transfer of employees, contractors, agents or representatives shall be on the basis that the Party to whom such employees, contractors, agents or representatives are transferred shall pay the other Party not less than 50% (fifty percent) of the annual cost to company of such employees, contractors, agents or representatives unless otherwise agreed to in writing.

 

13. FORCE MAJEURE

13.1. Neither Party will be liable to the other for any failure, delay or default in the performance of its obligations under this agreement, if and to the extent that such failure, delay or default is caused by force majeure including (without detracting from any other occurrences covered by the rules and principles relating to force majeure) casus fortuitous, act of God, strikes, lock out, fire, riot, flood, drought, state of emergency, inability to secure power, materials or supplies, embargoes, export control, international restrictions, shortage of transport facilities, any order of any international authority, any requirements of any authority or other competent local authority, war (whether declared or not), civil disturbance, any circumstance beyond its reasonable control, court order, or failures, shortages, interruptions or fluctuations in electrical power, water supply or communications (each a “Force Majeure Event”).

13.2. The Party claiming the Force Majeure Event will promptly (and in any event within 3 (three) business days notify the other Party in writing of its reasons for the delay or stoppage and its likely duration and will take all reasonable steps to overcome the delay or stoppage.

13.3. If the Party claiming the Force Majeure Event has complied with clause 13.2 its performance under this agreement will be suspended for the period that the Force Majeure Event continues, and the Party will have an extension of time for performance equal to such period. As regards the delay or stoppage arising from the Force Majeure Event –
13.3.1. any costs arising from such delay or stoppage will be borne by the Party incurring those costs;
13.3.2. the Party claiming the Force Majeure Event will take all reasonable steps necessary to bring that event to a close or to find a solution by which its obligations under this agreement may be performed despite the Force Majeure Event; and
13.3.3. if the Force Majeure Event continues for more than 30 (thirty) consecutive days, either Party may terminate the agreement with immediate effect on giving written notice to the other Party and neither Party will be liable to the other for such termination.

 

14. RELATIONSHIP REFERENCES

14.1. As part of its marketing activities Altron Karabina may wish to refer to the Customer in press releases, business related articles and promotional material (“News Releases”) from time to time and may wish the Customer to comment on its relationship with Altron Karabina.

14.2. The Customer undertakes on reasonable notice from Altron Karabina to provide comments to Altron Karabina for inclusion in News Releases.

 

15. GENERAL

15.1. Altron Karabina reserves the right to change, on reasonable notice to the Customer, these Standard Terms and Conditions at any time. These Standard Terms and Conditions or any part thereof may be overridden by any specific terms and conditions mutually negotiated and agreed in writing between the Parties. Where any conflict exists between these Standard Terms and Conditions and any terms and conditions specifically agreed to and which expressly states that they override these Standard Terms and Conditions, the specific terms and conditions shall prevail.

15.2. The Parties are and shall at all times be independent contractors vis-à-vis each other in relation to this agreement and neither Party shall be authorised to act as the agent or representative of the other Party in any way whatsoever or to bind the other Party by any means.

15.3. A Party shall not cede any of its rights, delegate any of its obligations or otherwise assign, dispose of, encumber or transfer any of its rights, obligations or interest in, under or in terms of this agreement to any third party, without the prior written consent of the other Party, except where such cession, delegation, assignment or transfer takes place to an affiliate of either Party.

15.4. No granting of time or indulgence shall be or be deemed to be a waiver of any term or condition of this agreement and no waiver of any breach shall operate as a waiver of any continuing or subsequent breach of that provision or any other provision.

15.5. If a court of competent jurisdiction or other competent body decides that any provision of this agreement is void or otherwise ineffective but would be valid and effective if appropriately modified then such provision will apply with the modification necessary to make it valid and effective. If such a provision cannot be so modified, the provisions’ invalidity or ineffectiveness will not affect or impair the validity or legal effect of any other provision of this agreement.

15.6. No variation or alteration to this agreement will be effective unless in writing and signed by the Parties and expressly identified as a variation or alteration of this agreement.

15.7. This agreement, including any non-contractual disputes arising out of or in relation to it, will be governed by and construed in accordance with the laws of the Republic of South Africa and the Parties submit to the non exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg.