Standard Terms and Conditions

1. Parties and Acceptance 🤝

The Contracting Parties

This agreement is between Agulhas Utilities Corporation (Pty) Ltd (Registration Number: 1999/003993/07), hereinafter referred to as “Agulhas,” and the individual or entity signing up for the Service, hereinafter referred to as the “Customer.” Agulhas and the Customer are collectively referred to as the “Parties.”

Agreement Acceptance

The Customer, by signing up for the Service, issuing a Purchase Order, or accepting any quotation/proposal, acknowledges and agrees that all work done, products supplied, and/or services rendered are governed exclusively by these Standard Terms and Conditions.

2. Definitions and Interpretation 📜

The headings are for convenience only and shall not affect the interpretation of this agreement. Unless context dictates otherwise:

• Gender and Plurality: Words importing one gender include the other two, and the singular includes the plural and vice versa.
• Service: Refers to the Consulting or Training Services, and accompanying services, delivered by Agulhas.
• VAT (Value Added Tax): The tax as provided for in the Value Added Tax Act, Act 89 of 1991 (South Africa).

3. Customer Privacy and Data Processing 🛡️

Our Commitment to Privacy

Agulhas is dedicated to safeguarding your privacy. By using the Services, you agree that Agulhas may store the information provided during registration. Individual online usage patterns will not be disclosed to advertisers or third parties.

Data Storage and Sharing (Documents)

By utilizing our Services, you consent to Agulhas storing documents administered within its online servers and making them accessible to you and the users with whom you share them. For enterprise accounts, documents may also be available to your enterprise administrator(s).

Agulhas will not disclose the name of your organization, or personal identifying information (names, addresses, phone numbers, email addresses) of document signers or users without prior written consent.

Personal Information Consent (POPIA and ECT Act)

To provide you with access and services, Agulhas must process certain Personal Information as defined in the Protection of Personal Information Act 4 of 2013 (POPIA). At a minimum, you agree to the processing of your:

• Full Name and Surname
• Email Address
• Phone Number

If your account includes an Advanced Electronic Signature (as defined in the Electronic Communications and Transaction Act of 2002), you also provide explicit consent for Agulhas to process your Identity Number.

4. Quotations, Pricing, and Renewals 💰

Acceptance and Governing Terms

Once you issue a Purchase Order (PO), you must state the quotation reference number. The terms and conditions contained on your PO will not apply, supplement, or supersede any provision in this agreement or the attached quotation/proposal.

The accepted quotation/proposal replaces and supersedes any previous proposals regarding the subject matter.

Third-Party Software

If a quotation/proposal includes third-party software that requires acceptance of a supplier’s end-user license agreement (EULA), your acceptance of the Agulhas quotation will be deemed acceptance of that supplier’s EULA.

Pricing Exclusions and Validity

• All pricing is quoted in South African Rand (ZAR) and excludes VAT unless explicitly stated otherwise.
• The price of services/goods will be Agulhas’s current ruling price on the supply/delivery date, unless a firm price has been quoted.
• Notwithstanding any other provision, the price contained in the quotation/proposal shall be valid and binding for a period of fourteen (14) days from the quote date.

Currency and Exchange Rate (ROE) Adjustments

Prices shall indicate the base Rate of Exchange (ROE) used to convert the foreign portion to South African currency. Any fluctuation in the ROE will result in adjustments under the following conditions:

1. Fluctuations between Bill of Material Rates and Quotations: Will be fully exposed to ROE adjustments. The ROE is determined at the average buy/sell rate on the quotation date based on the Standard Bank closing rates of the previous day.
2. Fluctuations between Quotation Date and Order Date: The order amount in ZAR will be determined at the average buy/sell rate on the order date (PO date) based on the Standard Bank closing rates of the previous day.

Licensing and Renewals

Products that contain licensing or maintenance are renewable on an annual basis, regardless of the implementation date. Renewal fees are payable each year on the anniversary date of the initial Purchase Order.

Upon written request, Agulhas may grant a 3-month grace period for license/maintenance renewal, but only if the implementation by the Customer has not been completed.

5. Invoicing and Payment Terms 🧾

Additional Charges and Interest

• Delays: Any delays or unforeseen difficulties caused by the client and beyond Agulhas’s control may result in additional charges.
• Disputed Amounts: If any portion of an invoice is disputed, the client undertakes to forthwith pay the undisputed amount according to the agreed credit terms.
• Overdue Interest: Interest is payable on overdue payments, calculated from day 31 of the invoice date, at 2% per month as permitted by the National Credit Act 34 of 2005.

6. Credit Granting and Financials 💳

Agulhas may, at its sole discretion, grant credit to applicants. Any credit grant will be subject to a thorough credit review through a recognized South African Credit Bureau. By applying for credit, you consent to Agulhas conducting such a review.

Agulhas may at any time withdraw the credit facility upon written notice to you.

7. Intellectual Property and Confidentiality ✨

Intellectual Property Ownership

Agulhas remains the sole owner of all copyright and other intellectual property rights in all utilities, software, solutions, designs, methodologies, tools, processes, templates, and materials provided, created, or developed either before or during the rendering of services by Agulhas.

Right of Lien

Agulhas reserves the right to exercise a lien (legal claim) over any processes implemented, infrastructure, and other solutions, including related documentation, if there are outstanding payments owed by the Customer.

Confidentiality Obligation 🤫

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

Non-Circumvention

The Customer shall not directly or indirectly circumvent Agulhas for the purpose of doing business of any kind with Agulhas’s Business Contacts. Specifically, you undertake not to conduct business or contact directly or indirectly Agulhas’s suppliers of services or products.

8. Limitation of Liability and Warranties ⚖️

Defective Goods or Services

Agulhas will not be held liable for defective goods or services unless a written notice detailing the defect is received by Agulhas within 48 hours after the delivery of goods or installation/activation of services.

Extent of Liability

Agulhas’s liability to the client for any damages (including those arising from negligence) will be limited to the replacement of goods and/or providing the services, whichever is applicable.

Exclusion of Consequential Damages

Neither party will, under any circumstances, be liable for any consequential damages, including but not limited to loss of business, loss of profits, or anticipated savings, whether foreseeable or not.

No Partnership

Nothing in this Agreement shall constitute or be deemed to constitute a relationship between the Parties of partnership, association, joint venture, or other co-operative entity.

9. Force Majeure ⛈️

Neither party shall have a claim against the other (the “affected party”) for any delay or failure to carry out obligations resulting from or attributable to Acts of God, war, terrorism, government action, labor unrest, failure of suppliers or contractors, or any other cause whatsoever beyond the affected party’s control (“Force Majeure”).

The affected party’s obligations will be suspended for the duration of the Force Majeure, commencing upon written notice to the other party. Upon cessation, the agreement will become fully operative, and performance shall resume immediately.

10. Breach, Termination, and Dispute Resolution

Breach and Termination Liability

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.

Arbitration

Any dispute or difference arising from the interpretation, implementation, or enforcement of this Agreement shall be referred to arbitration before an arbitrator appointed by, and in accordance with, the rules and procedures of the Arbitration Foundation of Southern Africa (AFSA).

The arbitration will be held in Johannesburg and will be conducted in camera (confidential). This clause does not prevent a Party from approaching a competent court of law to obtain urgent relief.

Legal Costs

If Agulhas institutes successful legal action against the client for whatever reason, the client will be liable to pay Agulhas’s legal costs calculated on an attorney and own client scale.

11. General Provisions 📝

• Whole Agreement: This Agreement constitutes the entire Agreement between the parties regarding the subject matter.
• Amendments: No alteration, variation, or consensual cancellation of this agreement (including this clause) will be of any force or effect unless recorded in writing and signed by all the Parties.
• Non-Waiver: Any extension of time or indulgence granted by either party will not constitute a waiver of any of its rights under the terms and conditions of this agreement.
• Assignment: No party may cede its rights and/or delegate its obligations under this agreement without the prior written consent of the other party.
• Severability: If any term is found to be invalid, unlawful, or unenforceable, that term will be severable, and the remaining provisions will remain in full force and effect.
• Governing Law: This agreement will be governed by, construed, and interpreted in accordance with the laws of the Republic of South Africa.
• Purchase Order Disclaimer: 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.
• Risk and Ownership: The client bears all risk of damage to, or loss of, the products from delivery. However, ownership in and to such products will not pass to the client until the purchase price has been paid in full to Agulhas.