The Parties

This agreement is between Agulhas Utilities Corporation (Pty) Ltd, registration number 1999/003993/07, (“Agulhas”) and the Customer who is the person signing up for the any of our Consulting or Training Services and accompanying services, delivered by Agulhas (the Service). Agulhas and the Customer will hereinafter be referred to as “Party” and/or “Parties”, as the context may indicate.

Definitions and Interpretation

The headings of the clauses in this agreement are for the purposes of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this agreement nor any clause hereof.
Unless a contrary intention clearly appears, words importing means any one gender includes the other two genders and the singular includes the plural and vice versa and natural persons include created entities (corporate or unincorporated) and the state and vice versa.
“VAT or Value Added Tax” is the value added as tax as provided for in the Value Added Tax Act, Act 89 of 1991 and/or amendments and legislation (whether delegated or otherwise) supplemental thereto.
Where any term is defined within the context of any clause in this agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this agreement, notwithstanding that the term has not been defined in this interpretation clause.

Privacy

Our top priority is protecting your privacy. Agulhas is dedicated to safeguarding your information. By using the Services, you are agreeing that Agulhas may store the information you provided as part of the registration process. Individual online usage patterns will not be disclosed to either advertisers or to third parties.
By using our Services, you are agreeing that Agulhas may (depending on the solution you chose) store the documents administered within its online servers and make them accessible to you and the users you share these documents with. For enterprise accounts, the documents may also be available to your enterprise administrator(s). Agulhas will not disclose the name of your organization, or the names, addresses, telephone numbers, email addresses, or other personal identifying information regarding document signers or users, without prior written consent.
To provide you with access and the services provided by Agulhas, Agulhas will need to process certain personal information as defined in the Protection of Personal Information Act 4 of 2013. The personal information that Agulhas will need to process depends on the type of authentication you require but at a minimum you agree to the processing of your full name, your surname, your email addresses, and your phone number. Where this account is accompanied by an advanced electronic signature as defined the Electronic Communications and Transaction Act of 2002 (ECT Act), you also provide consent for Agulhas to process your identity number.
You must expressly agree to the processing of the above personal information, and you must therefore click on the agree button or tick the agreement box at the end of this agreement to indicate your express consent to the processing of your personal information.

Quotations/Proposals

Upon acceptance of any of the quotations/proposals, you agree all work done, products supplied and/or services rendered are so supplied and/or rendered in accordance with the Standard Terms and Conditions of Agulhas.
State the quotation reference number, once you issue a purchase order. The terms and conditions contained on your purchase order will not apply to, supplement, or supersede any provision contained in this quotation/proposal and/or the attached agreements.
Should this quotation/proposal include the provision of third-party software supplied by Agulhas that necessitates the acceptance by you of the supplier’s end-user license agreement, then on acceptance of this quotation/proposal you will be deemed to have accepted the supplier’s end-user license agreement.
The accepted quotation/proposal replaces and supersedes any previous proposals and quotations issued regarding the subject matter thereof.
All pricing in this quotation/proposal is quotation in South African Rand and excludes VAT.
Unless a price has been quotation by Agulhas, which will then apply, the price of the services and/or goods will be the current ruling price of Agulhas on the date that the services and/or goods are supplied/delivered to the client.
Software and Hardware will be invoiced upon delivery.
Pricing for Professional Services is estimated and subject to a finalised statement of work.
Any products that contain licencing or maintenance are renewable on an annual basis, regardless of date or time of implementation by the Customer. Renewal of licences will be payable each year on the anniversary date of the initial Purchase Order. Upon written request by the customer, Agulhas may be approached to provide a 3-month grace period for licence or maintenance renewal, only if implementation by the Customer has not been completed.

Pricing

Prices shall indicate the base rate of exchange (ROE) used to convert the foreign portion to South African currency. Any increase or reduction in the relevant amount because of any fluctuation in the rate of exchange or revaluation of currencies shall, irrespective of whether the price is firm or not, be subject to the following conditions:
1. Fluctuations between contract bill of material rates and quotations: Will be fully exposed to ROE adjustments with the ROE determined at the average buy and sell rate on the quotation date based on the Standard Bank closing rates of the previous day (day before the quotation date);
1. Fluctuations between quotation date and order date: The order amount in South African currency will be determined at the average buy and sell rate on order date based on the Standard Bank closing rates of the previous day (day before the PO date);
Notwithstanding clause 1 and any other provision in these General Terms and Conditions the price contained in the quotation/proposal shall be valid and binding for a period of fourteen (14) days.

Invoicing

Invoices become payable immediately upon presentation. Clients are granted a 30 (thirty) day grace period, calculated from the date of the invoice, in which the invoice must be settled in full. Invoices will be rendered periodically against agreed to milestones, delivery, and completion of work.
Any delays or other unforeseen difficulties caused by the client which are beyond the control of Agulhas may result in additional charges.
All prices quotation excludes VAT, unless stated otherwise.
Any reasonable disbursements, including accommodation and travel, incurred by Agulhas in connection with the services rendered, will be agreed to with the client and will be charged to the client at cost plus VAT. This clause is only applicable when disbursements are not made provision for in the quotation/proposal.
In the event of any portion of an invoice being disputed, then the client undertakes to forthwith pay the undisputed amount of such invoice according to the agreed terms of credit allowed in the terms of this agreement.
Interest is payable on overdue payments, calculated from days 31 of the date of invoice, at 2% per month as permitted by the National Credit Act 34 of 2005.

Granting of Credit

Agulhas may in its sole and absolute discretion grant credit to anyone who applies for credit.
Any credit grant will be subject to a thorough credit review through a recognized South African Credit Bureau and by applying for credit, you agree to Agulhas conducting such a credit review.
Agulhas may at any time withdraw the credit facility upon written notice to you.

Confidentiality

The recipient of information as per the agreement with Agulhas, agree to keep the information confidential and not to disclose any such information to unauthorized persons.

Intellectual Property

Agulhas remains the owner of all copyright and other intellectual property rights in all utilities, software, software code, solutions, designs, techniques, methods, methodologies, tools, processes, templates, data, trademarks, patents, designations of origin, industrial designs and models, or other materials provided, created, or developed either before or during the rendering of services by Agulhas.
Agulhas reserves the right, where payments are outstanding, to exercise a lien in respect of those outstanding fees over any processes implemented, infrastructure and other solutions including any documentation relating thereto, which has been delivered to the client.

Non-Circumvention

You shall not directly or indirectly circumvent Agulhas for purposes of doing business of any kind with Agulhas’s Business Contacts.
You particularly undertake not to conduct business or contact directly or indirectly Agulhas’s suppliers of services or products.

No Partnership

Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall constitute or be deemed to constitute a relationship between the Parties of partnership, association, joint venture, or other co-operative entity.

Limitation of Liability

Agulhas will not be held liable for defective goods or services, unless written notice is received by Agulhas within 48 hours after delivery of the goods or installation and activation of the services to the client, detailing the defect.
Agulhas’s liability to the client for any damages allegedly sustained by the client, including any damages allegedly arising out of Agulhas’s negligence or that of its employees, agents, or sub-contractors, will be limited to the replacement of goods and/or providing the services, whichever is applicable.
Neither party will under any circumstances be liable for any consequential damages, special or otherwise, including but not limited to loss of business, loss of profits or anticipated savings, whether foreseeable or not.
In the event of a delict, breach of contract or breach of warranty, Agulhas will not be held liable for any amounts which cumulatively exceed 50% (fifty percent) of the total amount received by Agulhas in respect of the services performed in terms hereof.

Force Majeure and Limitation

Neither party will have any claim against the other party (“the affected party”) for any delay or failure of the affected party to carry out any of its obligations under this agreement arising from or attributable to acts of God, war, terrorism, government, labour action or unrest, failure of suppliers or contractors or any other cause whatsoever beyond the control of the affected party (“force majeure”).
The performance of the obligations of the affected party will, subject to clause 6.3, be suspended for the duration of the force majeure, which will be deemed to commence only upon the date of written notice by the affected party to the other party. Upon cessation of the force majeure, this agreement will again become fully operative, and the affected party will immediately resume its performance.

Breach and Termination

In the event of termination, for any reason whatsoever, the client is liable to pay any fees and expenses incurred up until the date of termination.

Non-Waiver

Any extension of time or any other relaxation of indulgence granted by either party to the other party will not be deemed to be a waiver by that party of any of its rights of the terms and conditions of this agreement.

Legal Costs

If Agulhas institutes legal action against the client for whatever reason, then the client will be liable to pay the legal costs of Agulhas calculated on an attorney and own client scale, if Agulhas is successful in such legal action.

General

This Agreement constitutes the entire Agreement between the parties regarding the subject matter hereof.
No alteration or variation to, or consensual cancellation of this agreement, including this clause, will be of any force or effect, unless it is recorded in writing and signed by all the parties.
No failure or delay by a party to enforce any provision of this agreement will constitute a waiver or suspension of such provision or affect in any way a party’s right to require performance of any such provision at any time in the future, nor will the waiver of any right arising from any subsequent breach nullify the effectiveness of the provision itself.
No party may cede its rights and/or delegate its obligations under this agreement without the prior written consent of the other party.
If any of the terms of this agreement are found to be invalid, unlawful, or unenforceable, such terms will be severable from the remaining provisions, which will remain in full force and effect. If any invalid term is capable of amendment to render it valid, the parties agree to negotiate in good faith an amendment to remove the invalidity.
Unless otherwise agreed in writing between the parties, no party will for its own benefit or as a representative of or agent for any third party, persuade, induce, encourage, procure or solicit (or procure such persuasion, inducement, encouragement, procurement or solicitation of) the personnel of the other party to disclose any intellectual property of the other party to any person not authorized by the owner of the intellectual property to receive it.
The client warrants that the person entering into the agreement, signing off on quotations or issuing a purchase order, is authorized to act on behalf of the client, whether disclosed or otherwise.
This agreement will be governed by, construed, and interpreted in accordance with the laws of the Republic of South Africa.
If the client fails to pay any undisputed amount due and payable to Agulhas in terms of this agreement for the rendering of any services or the delivery of products, then Agulhas may, without prejudice to any other rights it may have, suspend the rendering of further services or provision of products until payment thereof.
If any conflict arises in respect of the provisions contained in these terms and conditions and the attached quotation/proposal, the provisions contained in these terms and conditions will prevail.
The client will bear all risk of damage to, or loss of the products as set out in the attached quotation/proposal from the delivery of the products to the client.
Notwithstanding delivery and invoice of the products as set out in the quotation/proposal to the client, ownership in and to such products will not pass to the client until the purchase price of such products has been paid in full to Agulhas.
The terms and conditions contained on the client purchase order, order acceptance forms and/or invoices will not apply to supplement or supersede any provision of this agreement.
The client will be responsible for and control all activities in which Agulhas is involved which activities will remain under the supervision, management, and control for the client.
A signed delivery note will constitute prima facie proof that the services and/or goods have been supplied/delivered to the client, whether signed by the client, an employee, an agent, or representative of the client.
In the event of any conflict between these Terms and Conditions and any other agreement signed between the client and Agulhas, the provisions of such agreement will prevail over the conditions of these terms and conditions. Where no other agreement has been signed, these Terms and Conditions will constitute the agreement between the parties.

Arbitration

In the event of any dispute or difference arising amongst the Parties with regard to the interpretation, implementation or enforcement of this Agreement, or as to whether or not this Agreement has been terminated or is void or voidable and/or any other difference or dispute relating to or arising from this Agreement or the enforcement thereof, then such dispute or difference will be referred to arbitration before an arbitrator appointed by and in accordance with such rules and procedures of arbitration as may be determined by and in accordance with the Arbitration Foundation of Southern Africa (“the Arbitration Foundation”).
Notwithstanding anything to the contrary or stipulated by the Arbitration Foundation, the arbitration will be held in Johannesburg with a view to achieving an expeditious result and the arbitration will be conducted in camera, the Parties and the participants in the arbitration being obliged to maintain the utmost confidentiality regarding all matters relating thereto or arising therefrom, save as otherwise expressly and peremptorily required by Law.
Notwithstanding the provisions of this Clause 18, any Party shall be entitled to approach a competent court of law having jurisdiction to obtain any urgent relief which may be required by such Party.

Whole Agreement

This agreement constitutes the whole agreement between the parties relating to the subject matter hereof.
No extension of time or waiver or relaxation of any of the provisions or terms of this agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement, shall operate as an estoppel against any party in respect of its rights under this agreement, nor shall it operate so as to preclude such party thereafter from exercising its rights strictly in accordance with this agreement.
This agreement is divisible and in the event of any one or more of the provisions of this agreement being held for any reason to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this agreement, and this agreement shall be construed as if such invalid, illegal or unenforceable provision was not part of this agreement, and the agreement shall be carried out as nearly as possible in accordance with its original terms and intent.