TERMS AND CONDITIONS RELATING TO THE SUPPLY OF GOODS BY STORAGE TECHNOLOGY SERVICES (PTY) LTD t/a NEXIO
- All Goods supplied by Nexio to you (the “Customer”) shall be produced and supplied in accordance with the following terms and conditions (“Terms and Conditions”), which shall apply in addition to any terms and conditions contained in any quote provided by Nexio to the Customer and accepted by the Customer (“Quotation”). To the extent that there is any conflict between these Terms and Conditions and the terms and conditions contained in the Quotation, then these Terms and Conditions shall prevail or take precedence.
- The Customer hereby appoints Nexio to provide the Goods from time to time according to the Terms and Conditions.
- The Customer acknowledges that where applicable, Nexio has been appointed by Vendors as the reseller of certain Goods, having the necessary competency and capacity to provide such Goods. Accordingly, the Customer further undertakes to comply with any and all obligations placed on it in terms of these Terms and Conditions and any relevant Vendor terms and conditions which may apply to the provision of Goods by Nexio to the Customer.
2. INTERPRETATION AND DEFINITIONS
- In these Terms and Conditions unless the context indicates a contrary intention-
- Clause headings are for convenience only and shall not be used in its interpretation;
- An expression which denotes any gender includes the other gender/s and a natural person includes an artificial person and vice versa;
- A reference to a party includes that party’s successors-in-title and permitted assigns;
- Where the day on or by which anything is to be done is not a business day, it shall be done on or by the first business day thereafter;
- The expiration or termination of these Terms and Conditions shall not affect such of the provisions of these Terms and Conditions which expressly provide that they will operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
- The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example;
- The singular includes the plural and vice versa;
- The rule of construction that these Terms and Conditions shall be interpreted against the party responsible for the drafting shall not apply;
- Unless inconsistent with the context, the following words shall bear the following meaning-
- “Customer/s” mean any customer of Nexio, whether existing or new, to whom Nexio shall/ is currently providing the Goods;
- “CPA” means the Consumer Protection Act 68 of 2008;
- “CPI” means the Consumer Price Index which is the weighted average consumer price index for all items for the principal urban areas of South Africa as published by the Statistics South Africa, provided that, in the event of the publication being discontinued or of any change in the basis of computation of that index, any other applicable index agreed upon by the Parties within 90 (ninety) days of such discontinuation or change, or failing such agreement, prepared or recommended by an independent auditor appointed, in the absence of agreement, by the President for the time being of the Law Society of the Northern Provinces, or its successor body;
- “Defective” means the Goods are not suitable for its usual purpose or for the purpose it was bought, of poor quality and bad working order, or not useable or durable;
- “Goods” mean the Products and/or Services, as applicable in the context;
- “Nexio” means Storage Technology Services, its subsidiaries and/or Sub-contractors/s
- “Products” mean any products supplied by Nexio to the Customer which consists of but is not limited to hardware, cabling, consumables, software and software as a service;
- “Services” mean any delivery, support and maintenance, installation or professional services, or such other services, as is required by the Customer;
- “Sub-contractors” mean any persons who provide the Goods under these Terms and Conditions in whatever capacity (whether this is done so as a Vendor, agent, sub-contractor, agents of sub-contractor and/or independent consultant of Nexio);
- “VAT” means value-added tax payable in terms of the Value Added Tax Act,1991; and
- “Vendor” means the relevant vendor and/or manufacturer of the Goods.
- These Terms and Conditions shall commence upon acceptance by Nexio of any order of Goods by the Customer (“Commencement Date”) and shall continue to be of full force and effect until terminated or until a superseding written agreement has been entered into between the Parties to regulate the further provision of Goods.
- Nexio reserves the right to deliver, where applicable, Goods ordered as and when the Goods are made available to Nexio. Nexio shall be entitled to execute delivery in part from time to time.
- Nexio will endeavor to complete Services by the dates specified in the Quotation, however all such dates are estimates only and are therefore not binding on Nexio.
- Risk of loss or damage to the Goods shall pass to the Customer at the time of delivery, to the determined place of delivery, provided that in the event that the Customer fails to take delivery thereof the risk shall pass as soon as delivery has been tendered to by Nexio, and any costs, whether direct or indirect, incurred in respect of tendering such delivery shall be borne and paid for by the Customer. Additionally, the Customer shall be liable for all of Nexio’s costs incurred to store the Goods until such time as the Customer accepts delivery thereof.
- Title and ownership in any of the Goods shall not pass to the Customer and/or the relevant financial provider, if applicable, until Nexio has received, from the Customer and /or the financial provider, payment in full of the purchase price as stipulated on the relevant invoice.
- Where the Customer has chosen to finance such purchase of the products the Customer shall remain liable to Nexio for the above-mentioned purchase price.
- Ownership in any software licensed to the Customer shall remain with Nexio or its Sub-contractor/s and/or its Vendor/s.
- To the extent required, the Customer has a license to use or will be provided with a license to use the Goods in terms of a separate end-user license agreement to be concluded between the Customer and with Nexio or its Sub-contractor/s and/or its Vendor/s.
- To the extent that Nexio provides the Products to the Customer-
- the Customer agrees to complete sign and comply with the relevant end-user license agreement furnished by Nexio and prescribed by the Vendor to the Customer in respect of the Products; and
- no amendment, variation or alteration to the end-user license agreement shall be of any force or effect unless consented to in writing by the Vendor whatsoever;
- Where an order is placed upon Nexio and after its acceptance by Nexio, it may not be cancelled in whole or in part or varied in any manner whatsoever by the Customer, unless agreed to by Nexio in writing, whereupon Nexio shall be entitled to charge the Customer a reasonable cancellation fee.
- Nexio will be entitled to deliver the Products ordered as and when they are made available to Nexio. Nexio shall be entitled to execute delivery in part, from time to time.
5. PRICES, ORDERS, SERVICES CHARGES AND PAYMENT
- Prices quoted are valid for a period as stated on the quote document, and are subject to the conditions below:
- The terms and conditions as set out in this agreement shall apply, in respect of all transactions concluded between Nexio and the Customer and shall apply to all quotations issued by and all orders processed by Nexio and to the supply, sale and delivery of all goods or services by Nexio,
- Foreign Exchange: When prices quoted are subject to foreign currency fluctuations. In the event that the Rand fluctuates against the applicable foreign currency from the date of the quotation and the date on which the Customer’s Purchase Order is accepted by Nexio, Nexio reserves the right to re-quote and Nexio reserves the right to increase the price of such goods in accordance with the Exchange Rate increase. n the event of the shipping, airfreight or other transportation costs increasing between the date of the quotation and the date on which the Customer’s Purchase Order is accepted by Nexio, Nexio reserves the right to increase the price of such goods in accordance with the cost increase.
- In the event of a manufacturer’s price being increased between the date of the quotation and the date on which the Customer’s Purchase Order is accepted by Nexio, Nexio reserves the right to increase the price of such goods in accordance with the manufacturer’s price increase.
- A purchase order or order placed against a quotation is deemed to be and shall constitute acceptance of that quote. Nexio may accept any orders received from the Customer
- Nexio reserves the right to invoice Customers for goods ordered and those which were procured upon written request either via a non-cancellable irrevocable order, official purchase order or an email instruction received.
- Nexio reserves the right not to accept any order.
Acceptance by Nexio of any order and all delivery obligations are always subject to the availability of the goods.
- Errors and Omissions are exempted and shall not bind Nexio. Nexio reserves the right, at any time, to correct any error or omission.
- Any discount which Nexio may grant to the Customer shall be forfeited if payment is not made to Nexio on the due date. All fees are payable by the Customer to Nexio free of deduction or set-off as set out in the relevant valid tax invoice, as follows:
- The prices payable by the Customer to Nexio for the Goods, which includes the costs for all packing, storage and delivery, shall be listed on the valid tax invoice.
- Nexio shall be entitled, from time to time, to increase the service charges payable by the Customer to it in accordance with cpi increases upon prior written notice to the Customer. In any event, Nexio shall, upon prior written notice to the Customer, increase the service charges payable by the Customer to it annually in accordance with the corresponding CPI increase, which increase shall be effective annually on each anniversary of the Commencement Date.
- All fees are payable by the Customer to Nexio free of deduction or set-off as set out in the relevant valid tax invoice, as follows:
- All license fees are payable to Nexio in annually advance by no later than 30 days from date of invoice
- Fees in respect of Products are payable within 30 from date of invoice and invoicing will happen on delivery.
- All support fees are payable annually in advance
- Fees in respect of Services are payable within 30 days of date of invoice.
- Unless otherwise clearly stipulated, all amounts payable by the Customer to Nexio in terms of these Terms and Conditions must include VAT, which VAT and any other statutory levies, taxes, imposts and travel and subsidiary costs (where circumstances require) thereon from time to time shall be borne and paid by the Customer.
- The Customer shall not under any circumstances be entitled to withhold payment of any amount due under these Terms and Conditions. In the event that the Customer fails to make due and timeous payment of any amount owing to Nexio under these Terms and Conditions and for clarification subject to clause 14 (Breach) –
- Nexio shall be entitled to suspend the supply of Goods, until such time as the Customer shall have paid to Nexio such outstanding amount as represented on the valid tax invoice including any interest which may have accrued thereon; and
- such outstanding amount shall bear interest at the prime rate plus 2% from the due date until date of payment thereof has been received by Nexio in full. For the purposes of this clause the prime rate shall mean the prime bank overdraft rate as charged by the Nedbank, a division of Nedcor Limited to its corporate customers in respect of overdraft facilities, calculated and compounded monthly in arrear, as certified by any manager of such bank whose appointment and designation it shall not be necessary to prove.
- Should any dispute arise out of the provisions of this clause in relation to the Customer’s indebtedness, and failing agreement between the parties, a certificate under the hand of Nexio’s CFO shall be final and binding on the Customer.
6. OBLIGATIONS OF THE CUSTOMER
- The Customer shall-
- At all times use the Goods in compliance with these Terms and Conditions and the Vendor terms and conditions;
- Ensure that Nexio and/ or any of its Sub-contractors are not directly or indirectly impeded from performing in terms of these Terms and Conditions. If such circumstances occur Nexio and/or its Sub-contractors shall in no way be held liable and the Customer shall not be entitled to withhold payment or resile from these Terms and Conditions;
- Procure all the necessary software, server/s and communications connections necessary to receive the Goods;
- Comply with any agreed specifications and provide such assistance reasonably required by Nexio so as to ensure Nexio’s on-going ability to provide the Goods; and
- Not act or omit to act in a way which may damage the Goods or any property or network, or however cause the quality of the Goods to be impaired.
- To the extent applicable, the Customer acknowledges and agrees that these Terms and Conditions are executed by it on behalf of all end-users who use the Goods.
- No claim in respect or shortages or damage to Goods sold or licensed shall be entertained unless made in writing and received by Nexio within 7 (seven) days from date of delivery of Goods. In the event of material defects or shortages in Goods proved to Nexio’s satisfaction, and upon being notified in writing, Nexio shall at its option either exchange the Goods for similar product, or accept return of the Goods and refund the purchase price and/or license fees therefore, as applicable and in accordance to the Vendor terms.
7. INTELLECTUAL PROPERTY
- Unless otherwise agreed between the Customer and Nexio, all right and title in and to any intellectual property used or embodied in or in connection with the Goods shall remain the property of Nexio and its Sub-contractors. The Customer shall not acquire any right, title or interest (unless otherwise agreed) entitling it to use the trade-marks of Nexio or the Vendor. The Customer undertakes in favour of Nexio not to perform any act, which would injure the reputation or goodwill attaching to the trade-marks of Nexio or the Vendor or which would prejudice such Nexio or the Vendor’s rights in and to such trade-marks.
- The Customer must promptly provide Nexio with notice in writing of any claim being made or action threatened or brought against the Customer and will permit Nexio and/or its Sub-contractors, at Nexio’s and/or its Sub-contractor’s own expense, to conduct any litigation that may ensue and all negotiations for a settlement of the claim.
8. SANCTIONS AND TRADE CONTROL
- Each Party shall, in the context of the engagement between the Parties-
- comply with all economic, trade and financial sanctions laws, regulations, embargoes or restrictive measures administered (“Sanctions”), as well as all trade control laws and regulations (“Trade Control Laws”) enacted or enforced by the governments of the United Kingdom, European Union, United States of America and any other relevant country
- not knowingly do anything which may cause the other Party or members of its group to breach Sanctions;
- provide such assistance, documentation and information to the other party as that Party may reasonably request, including but not limited to, end customer information, destination and intended use of goods or services;
- notify the other Party in writing as soon as it becomes aware of an actual or potential investigation/breach in relation to the Applicable Laws or any material change in the status of any of the parties to these Terms and Conditions in respect of; Sanctions status e.g. the inclusion on a Sanctions list in any applicable jurisdiction (as stated in (i) above;
- license or authorization status e.g. a loss of license/authorization in respect of Sanctions or Trade Controls;
- have the right to terminate these Terms and Conditions if any of the provisions of this clause 8 are breached.
- The breaching Party hereby indemnifies and holds the non-breaching Party harmless from any and all claims, losses and damages suffered or incurred by the non-breaching Party arising out of or in connection with the breaching Party’s breaching this clause 8.
9. CORRUPTION, TERRORISM AND MONEY LAUNDERING
- The Customer shall comply with all applicable laws relating to the combating of corruption, money laundering and terrorism (“CMT laws”).
- The Customer confirms that it is its stated policy not to transact, directly or indirectly, with any person involved in or generally associated with corruption, organised crime, bribery, money-laundering, terrorism or any other criminal activity (“Prohibited Activity”).
- To this effect, the Customer shall-
- comply with all applicable law relating to bribery and corruption including:
- The SA Prevention and Combating of Corrupt Practices Act 2004;
- The UK Bribery Act 2010; and
- The US Foreign Corrupt Practices Act
- not do or omit to do anything likely to cause Nexio to be in breach of any such applicable law;
- not give, offer, promise, receive, or request any bribes, including in relation to any public official;
- maintain throughout the term of these Terms and Conditions a programmed;
- Nexio shall be entitled to perform an audit on the Customer at any time, to ensure the Customer’s compliance with any CMT laws.
- comply with all of Nexio’s instructions during the audit and provide all necessary support and information to Nexio’s representatives during the audit, including but not limited to providing any requested documentation
- if requested and at Nexio’s reasonable cost, provide Nexio sufficient reasonable assistance to enable Nexio to perform any actions required by any government or agency in any jurisdiction for the purpose of compliance with any applicable law or in connection with any investigation relating to the applicable law;
- maintain adequate internal accounting controls and reasonably detailed books, records and accounts in respect of the supply of Goods to Nexio;
- to make payment to Nexio, for Goods, by wire transfer or other traceable instruments to a bank account in Nexio’s name;
- promptly notify Nexio of any allegation of fraud, bribery or corrupt or unlawful practices made against the Customer in court, arbitration or administrative proceedings, or any investigation is commenced in respect of such allegations; at any time during the term of these Terms and Conditions;
- The Customer hereby indemnifies Nexio and its directors, officers, employees, agents and affiliates against all losses which they have suffered as a result of breach of this clause by the Customer.
- Notwithstanding any other provision in these Terms and Conditions and without prejudice to its right to claim damages under these Terms and Conditions or in law, Nexio shall be entitled to immediately terminate these Terms and Conditions if it concludes, acting in its sole discretion, that the Customer has not complied with any CMT laws.
Where the CPA is applicable:
- The Customer confirms that Nexio has provided the Customer with reasonable opportunity to examine the Products prior to payment thereof and the Customer confirms that the representation of the Products in question were not misleading and/or false;
- The price has been provided to the Customer on the Quotation;
- The label and/or trade description of the Products has been provided on its packaging;
- Nexio has provided the Customer with a quote of its financial obligations prior to the commencement of these Terms and Conditions, as further set out in the Quotation;
- Nexio has not used force or manipulated the Customer to enter into these Terms and Conditions or to make payment of the Goods;
- Has sufficient stock of the Products and/or capacity to render the Services.
- Request pre-authorisation for repairs or maintenance services
- Subject to what was purchased by the Customer and upon request, by the Customer, Nexio shall furnish the Customer with a written cost estimates/quotation, prior to the execution of any repairs or maintenance services.
- Subject to clause 6.1 above, Nexio will not conduct any repairs or maintenance services without written approval from the Customer and shall not be liable for the failure of the Customer to effect such repairs and/or maintenance services.
- Return of Defective Goods
- The Customer may return Defective Products and may a request a full refund for such Products, provided this is done within a reasonable period.
- Implied Warranty
- Nexio confirms that the Customer is entitled to receive Products and Services that are of good quality, in good working order and free of any defects, and that comply with any applicable standards set under the Standards Act, No. 29 of 1993 or any other public regulation; and
- Nexio confirms that the Goods comply with the requirements and standards of being safe, of good quality and durable.
- The Customer has the right to return, without penalty, any Defective Products, to Nexio, within 6 (six) months, from the date of delivery. Nexio shall either repair, replace or refund the Defective and same shall be the only remedies available to the Customer.
- Nexio shall replace the Products or refund the Customer the price paid for the products within a period of 3 (three) months after repairs have been done, if the repaired goods are found to be Defective.
- If the Service rendered by Nexio is of poor quality or not completed in time, the Customer may request that Nexio correct its mistakes or request a refund. A refund will depend on the extent of Nexio’s mistake.
11. DATA PROTECTION
- During the course of these Terms and Conditions, the Parties will require each other to supply certain personal information (for instance business contact names, titles, business telephone numbers, business e-mail addresses, as defined by the Protection of Personal Information Act No. 4 of 2013). With regards to the personal information supplied, each Party will ensure that the disclosure of such information is consistent and compliant with these Terms and Conditions as well as with any applicable laws governing the collection, use and protection of personal information applicable. Each Party shall be independently responsible for ensuring that its own processing of personal information is undertaken in accordance with Applicable Law.
- It is each Parties obligation:
- to inform all necessary parties who the Parties are providing their information to;
- to inform them of how it will be used; and
- to ensure all appropriate consents required for such transfer and use have been previously obtained.
- From time to time the Parties may use such personal information or other information provided to evaluate compliance with these terms and Conditions and this clause (Data Protection). The evaluation shall be conducted in compliance with applicable laws, and the Parties hereby agree to such evaluation.
- By providing such personal information, the Parties consents to the use, transfer and processing of this information for the uses described in this clause.
- For any question regarding the use of personal information or if the Customer wishes to restrict Nexio’s use of such personal information the Customer is required to contact:
Nexio: Welme Hefer
011 808 6000
- The Customer shall not be entitled to cede, transfer or assign, partially or entirely, any of its rights and obligations under these Terms and Conditions to a third party without the prior written consent from Nexio.
- The Services are supplied by Nexio to the Customer on an “as is” basis. Nexio makes no warranties whether express, implied in law or residual, including without limitation, the warranties of merchantability and fitness for a particular purpose, all of which are excluded.
- The Customer agrees and acknowledges (and to the extent required procure that the End-User acknowledges and agrees) the Products may be supplied with a Vendor’s and/or manufacturer’s warranty and/or license, which warranty and/or license shall apply exclusively between the manufacturer or Vendor of the relevant item of Products and the Customer, and the Customer shall have no claim against Nexio in connection therewith. Nexio shall not be responsible for repair or replacement of any faulty or Defective Products, save to the extent as may be agreed upon between the Parties in writing, and any such repair or replacement by Nexio shall be at the Customer’s own expense and charged by Nexio on a time and materials basis and in accordance with Nexio’s prevailing standard rates, fees and charges.
- The Party receiving the confidential information (“Receiving Party”) from the Party disclosing the confidential information to the Receiving Party (“Disclosing Party”) undertake that it, its personnel, agents etc. will fully respect the confidentiality of any confidential information shared by the Disclosing Party. The Receiving Party hereby undertakes to treat as confidential all information obtained from the Disclosing Party, or communicated to the other pursuant to these Terms and Conditions (or through discussions or negotiations prior to the relevant order being placed by the Customer) or acquired in the performance of the order or these Terms and Conditions, and will not divulge such information to any person and will use such information solely in connection with performing their obligations under these Terms and Conditions and not for their own benefit or for the benefit of any third party, provided that this clause shall not extend to information:
- which is already public knowledge or becomes so at a future date (other than as a result of breach of this clause);
- which is independently developed by the Disclosing Party without using proprietary information;
- the disclosure of which is agreed to by the parties; or
- which is communicated or disclosed to the Receiving Party by a third party lawfully in possession thereof and entitled so to disclose it.
- No party shall without the consent of the other party, issue or make any public announcement or statement or release or make available any information regarding these Terms and Conditions or its implementation. Once the other party has approved any such announcement or statement or release of information, the approving party shall automatically be entitled to issue or make the same announcement or statement or release the information in question in the same approved format.
- If the Customer commits any breach of these Terms and Conditions and fails to remedy the breach within 5 (five) business days after receipt from Nexio of written notice calling upon the Customer to remedy such breach, then Nexio shall be entitled to suspend, delay or cancel any provision of the Goods by the Customer or to claim specific performance, in either event without prejudice to Nexio’s rights to claim damages.
16. SUSPENSION OF THE SERVICES
- Nexio shall be entitled, without prejudice to any right it may have in terms of these Terms and Conditions or at law, at any time and on such notice as may be reasonable in the circumstances, to suspend provision of the Goods or any part thereof in any of the following circumstances-
- for so long as the Customer remains in breach of its obligations under these Terms and Conditions; and/or
- in the event that the Customer infringes the intellectual property rights of any third party in relation to the provision of the Goods; and/or
- in the event that Nexio, in its reasonable discretion, believes that the Customer is utilising the Goods in a manner prejudicial to the interests of Nexio, the Customer or any third party.
- Nexio reserves the right to cancel any provision of the Goods by Nexio to the Customer if:
- the Customer is insolvent or is unable to pay its debts, or seeks to effect any compromise with any of its creditors or compound any of its debts;
- the Customer is placed under an order of sequestration, judicial management or liquidation, whether such order be provisional or final;
- the Customer is the subject of any resolution passed to enable it to be wound up or dissolved;
- any judgement is given against the Customer in any court of law and, if appealable, is not appealed against within the period allowed for the lodging of such an appeal or if not subject to an appeal, remains unsatisfied for a period of 10 (ten) days; or
- the Customer is in breach of any of its obligations and fails to remedy same in accordance with the provisions of clause 16.
18. RIGHTS ON TERMINATION
Notwithstanding any other provision of these Terms and Conditions, on termination of these Terms and Conditions for any reason whatsoever (“termination date”) any amounts due to Nexio shall immediately become payable to Nexio and the Customer shall forthwith make payment of same to Nexio by not later than seven days from the date of termination of this Agreement.
19. LIABILITY AND INDEMNITY
- To the extent permitted by law, Nexio shall not be liable to the Customer for any loss, cost and/or damages including, but not limited to, direct, indirect, special, punitive and/or consequential loss, howsoever arising from these Terms and Conditions.
- Each Party’s maximum total liability for loss, liability or damage in terms of or arising out of these Terms and Conditions, howsoever arising or caused, shall be limited to direct damages proven, which amount shall not exceed the value of the amount set out in the Quotation.
20. GOVERNING LAW AND JURISDICTION
- These Terms and Conditions shall be governed and interpreted in accordance with the laws of the Republic of South Africa.
- The Customer hereby consents and submits to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Division, (Johannesburg) in any dispute arising from or in connection with these Terms and Conditions.
- The parties choose as their domicile citandi et executandi (“Nominated Address”) for all purposes relating to these Terms and Conditions, including the giving of any notice, the payment of any sum, and the serving of any process, as follows:
Physical: Nexio Manor, Cnr Rivonia Road and 3rd, Rivonia Johannesburg.
Physical: Customer’s registered office.
- Each party shall be entitled from time to time, by giving written notice to the other party, to vary its Nominated Address to any other physical address, not being a post office box or poste restante, within the Republic of South Africa.
- Notwithstanding anything to the contrary contained in these Terms and Conditions, a written notice or communication actually received by one of the parties from another, including by way of fax transmission, shall be adequate written notice or communication to such party.
- These Terms and Conditions constitutes the sole record of the agreement between the Parties in regard to the subject matter thereof and shall supersede all other agreements and/or representations whether written, oral and/or implied between the parties.
- Neither party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
- Nexio may, in its absolute and sole discretion, change, amend or vary these Terms and Conditions at any time. The amended Terms and Conditions will apply to the Customer if Nexio is responsible for the provision of Goods for the Customer with Nexio from date of amendment of these Terms and Conditions.
- For purposes hereof “in writing” shall exclude any written document that is in the form, either wholly or partly, of a data message as defined in the Electronic Communications and Transactions Act 25 of 2002, and “signed” shall mean a signature executed by hand with a pen and without any electronic process or intervention.
- No indulgence which either party (the “Grantor”) may grant to the other (the “Grantee”) shall constitute a waiver of any of the rights of the Grantor, who shall not thereby be precluded from exercising any rights against the Grantee which may have arisen in the past or which might arise in the future.
- Nothing in these Terms and Conditions shall constitute a partnership, joint venture, agency or employment between the parties hereto, and neither party shall have the authority or power to bind, or contract in the name of, or to create a liability against, the other in any way for any purpose.
- If any provision of these Terms and Conditions is found to be invalid, unlawful or unenforceable, such provision shall not invalidate the remaining provisions of these Terms and Conditions.
- The Customer acknowledges the contents set out under these Terms and Conditions, understands and accepts their implications thereof.