Services Terms and Conditions
BizBox Terms and Conditions
Services Terms and Conditions
Standard Services Terms and Conditions
Sumo Tech is a company in the consulting business and in the business of developing its Information Communication and Technology Solutions and is further an authorized reseller of various Original Equipment Manufacturing software products, hardware, cloud computing solutions (“the Products”) and provides implementation, support and maintenance services in respect of such products (Services).
These Terms and Conditions apply and regulate the relationship between Sumo Tech and the Client for the Services or Products procured by the Client from Sumo Tech in the Service Level Agreement, Ordering Document and/or the Quotation. Signature by the Client of the Service Level Agreement, Ordering Document and/or the Quotation signifies acceptance of these Standard Services Terms and Conditions by the Client. The terms of the Client in the Purchase Order or any of its Document will have no full or effect in the relationship between Sumo Tech and the Client.
1.
1.1. Save as provided in these Terms and Conditions, neither Party hereto will during the term hereof assign or otherwise transfer or cede any of its rights or obligations arising from these Terms and Conditions to any third party without prior written consent of the other Party.
1.2. Nothing contained in these Terms and Conditions shall be construed as establishing or creating a relationship of employer and employee or principal and agent or a partnership. The Client acknowledges and agrees that the position of Sumo Tech is of an independent contractor. Neither Sumo Tech nor the Client shall at any time have or purport to have any authority to act on behalf of the other party except for Services agreed to in the Service Level Agreement, Ordering Document and/or the Quotation or as may be agreed to by the Parties from time to time.
2.
2.1. The Service Level Agreement, Ordering Document and/or the Quotation shall in addition to Services or Products procured detail the timelines and such other terms as may be applicable to the procurement of such Products and/or Services. The Service Level Agreement, Ordering Document and/or the Quotation shall be signed by both Parties prior to delivery of Services or Products.
2.2. The Parties may amend the scope of Services defined in the Service Level Agreement, Ordering Document and/or the Quotation for justifiable reasons. Such amendments will be effective from the date of signature thereof by the last signing Party, unless agreed otherwise by the Parties. If the Parties agree to add Services to the scope of the Services or Products signed under these Terms and Conditions the Service Level Agreement, Ordering Document and/or the Quotation will be amended accordingly and provide for such additional costs as may be applicable and be signed by both Parties.
2.3. Sumo Tech shall deliver only those Products or Services set out in the Service Level Agreement, Ordering Document and/or the Quotation and as may be directed and agreed to by both Parties from time to time. Sumo Tech shall not perform any acts or any other services on Client’s behalf not explicitly authorized by the Client.
2.4. Should the Client require Services and/or Products that are not specified in Service Level Agreement, Ordering Document and/or the Quotation, Sumo Tech shall provide a written quotation to the Client and only execute on such quotation upon signature and acceptance thereof and of all terms and conditions that may apply to such quotation by the Client.
2.5. Upon request of Sumo Tech, the Client shall in a timely manner grant Sumo Tech access to the premises as may be required and further furnish information and any documents from time to time as may be required for Sumo Tech to perform the Services.
2.6. All Deliverables, information, drawings, specifications, designs, inventions and technologies developed by Sumo Tech and all intellectual property and other rights therein shall vest in Sumo Tech.
2.7. The Customer shall not have any right, title or interest in or to any of Sumo Tech’s trademarks, nor shall the delivery of Services or Products and packaging containing Sumo Tech ‘s trademarks, trade names give the Client any right or title to these or similar trademarks or trade names. The Client shall not use any trademark, trade name or other indication in relation to the Services or Products without Sumo Tech’s prior written approval.
3. REPRESENTATIONS AND WARRANTIES FROM THE SUMOTECH
3.1. Sumo Tech represents to the Client that:
3.1.1. it is and shall remain, properly registered, licensed and qualified, and has all requisite power and authority in accordance with applicable laws and regulations to provide the Services to the Client, and to conduct its business and perform its obligations contemplated hereunder.
3.1.2. it shall exercise all reasonable skill, care and diligence in the delivery of Services and/or Products. and carry out all the responsibilities in accordance with recognized professional standards.
3.1.3. Sumo Tech hereby undertakes to obey all reasonable lawful directions and instructions of the Client and/or its designated representatives and will, to the extent required, charge additional costs for such instructions.
3.1.4. it is not authorized or empowered by the Client beyond that which is stipulated in Service Level Agreement, Ordering Document and/or the Quotation signed by the Client. or as may be agreed to from time to time in writing by the Parties.
3.1.5. Sumo Tech warrants that the Services will be provided in a professional manner and inccordance with the requirements agreed to by the Parties, In the event of any poor performance of Servics the Client shall within 30 days from the date of Service notify Sumo Tech of the defective Services and Sumo Tech will remedy the defects without any charge to the Client.
3.1.6. The Products delivered will be subject to Original Equipment Manufacturer standard warranty as specified in the link provided in the Service Level Agreement, Ordering Document and/or the Quotation and Sumo Tech will facilitate the warranty enforcement on behalf of the Client with the Original Equipment Manufacturer.
3.2. If the Customer receives any information or indication of inconsistency with the statements in this clause 3, it shall promptly inform Sumo Tech in writing, specifying the facts or circumstances and the possible adverse effect on Sumo Tech’s performance and Sumo Tech shall take reasonable steps to remedy such inconsistency.
4. SERVICES FEES
4.1. In consideration for the delivery of Services or the Products in accordance with these terms , the Client will pay to Sumo Tech the amount specified in the Service Level Agreement, Ordering Document and/or the Quotation signed by the Clientwithin 30 days from the date of invoice unless the Parties has agreed on advance payment in which event Sumo Tech shall not deliver the Services or Products until such advance payment is received by Sumo Tech.
4.2. All payments due to Sumo Tech shall be paid by electronic transfer into the bank account nominated by Sumo Tech as may be specified in the associated invoice without any deductions or set-off of whatever nature.
4.3. Both Parties agree that the Fee shall constitute Sumo Tech’s remuneration for performance of Services or delivery of Products
4.4. Payment of the Fee shall be subject to all applicable governmental taxes and regulations, including but not limited to withholding taxes to the extent required by law.
4.5. Each Party shall bear its own tax liability levied against it arising from performance of such party’s obligations hereunder including, but not limited to value-added, Products and Services, withholding, custom and excise, and sale taxes, and duties, levies, imposts or such other taxes or charges of a similar nature as may apply from time to time.
4.6. Sumo Tech shall be entitled, without any liability of whatever nature, to withhold its performance of Services or delivery of Products if any invoice is not settled in accordance with the terms of this clause
5. BUSINESS ETHICS & COMPLIANCE WITH LAWS
5.1. The Parties shall establish and maintain, and shall cause their employees, owners, directors and other representatives (as applicable) to establish and maintain, a high standard of ethical business practices in connection with performance of their obligations hereunder.
5.2. The Parties shall comply with all applicable local and international laws and regulations. Without limiting the foregoing, it will not engage in any activities that violate the United States Foreign Corrupt Practices Act, the UK Bribery Act, as well as any other local and applicable anti-bribery and anti-corruption laws.
6. CONFIDENTIALITY OBLIGATIONS
6.1. The Parties shall use all information supplied by one Party to the other or that otherwise comes to its knowledge in connection with this Agreement, such as drawings, specifications, photographs, samples, models, processes, procedures, instructions, software, hardware, IT infrastructure, reports, papers, and any other technical and/or commercial information, for the sole purpose of providing the Services under this Agreement.
6.2. Further, the Parties shall keep all information relating to the Services or Products and such other information as reasonable expected to be confidential as such and not disclose same to any third party without prior written consent of the proprietor thereof.
6.3. All information mentioned in clause 6.2, including Confidential Information, shall remain the exclusive property of the disclosing party. The Party receiving Confidential Information shall, upon the disclosing Party’s demand, promptly return to the disclosing Party all such information and shall not retain any copy thereof. In any case, upon termination of this Agreement it shall return to the disclosing Party – unless otherwise agreed in writing – originals as well as any copies of all books, papers, drawings, films, discs, tapes and any other information carriers put at its disposal in connection with the performance of the Services under this Agreement.
6.4. Privacy and data protection: For the performance of this Agreement, the Parties may receive Personal Data from each other. The processing of such Personal Data shall at all times be compliant with Data Protection laws and regulations.
6.4.1. The Parties hereto will comply at all times with the Protection of Personal Information Act, No 4 of 2013 (“POPIA”). In addition, the parties will take all reasonable steps to ensure its agents and sub-contractors comply with POPIA, where the agents or subcontractors are processing Personal Information in terms of this Agreement.
6.4.2. Where Personal Information of either party is disclosed to the other party, such party will:
6.4.2.1. ensure that such Personal Information is only used for purposes authorised by the other;
6.4.2.2. notify the other of any request it receives from third parties for access to or changes to the Personal Information;
6.4.2.3. other than as contemplated by this Agreement, not transfer the Personal Information in any manner to any third party not authorised in writing;
6.4.2.4. only hold and process the Personal Information after having taken appropriate and all reasonable technical and organisational security measures to guard against unauthorised or unlawful processing of the Personal Information and will guard against accidental loss, unauthorised access, unauthorised processing and destruction of or damage to, that Personal Information;
6.4.2.5. provide a level of security appropriate to the harm that might result from any unauthorised or unlawful processing or accidental loss, destruction or damage to the Personal Information and also to the nature of the Personal Information being protected and in the event of a breach, notify the other within one Business Day of identifying the breach;
7. LIMITATION OF LIABILITY
7.1. Either Party’s liability arising from theseterms and conditions shall notwithstanding the reason giving rise to such liability be limited to 5% of the total amount paid or payable to Sumo Tech in respect of the Service Level Agreement, Ordering Document and/or the Quotation
7.2. Neither party hereto shall be liable to the other party for lost profits, lost savings, loss of reputation, loss of goodwill, any indirect, incidental, punitive, special or consequential damages, arising out of or in connection with the performance of the Services or delivery of Products hereunder Agreement, whether or not such damages are based on delict, warranty, contract or any other legal theory – even if the party has been advised, or is aware, of the possibility of such damages.
7.3. The Parties are responsible for and will arrange at their own expense for their employees, consultants’ sufficient insurance coverage against all commonly insured risks, including, but not limited to, the financial consequences of third-party liability, illness, and accidents.
8. GOVERNING LAW & DISPUTE RESOLUTION
8.1. These Terms and Conditions shall be governed by and be construed in accordance with the laws of the Republic of South Africa.
8.2. Any dispute between the Parties arising out of or related hereto shall be elevated to senior management of the Parties with the aim to resolve such dispute within 45 days of written notice by either Party requesting such resolution.
8.3. Any dispute between the Parties arising out of or in connection (including any question regarding its existence, validity or termination) that cannot be solved in accordance with the procedure in Clause 9 shall be referred by either party to Arbitration Foundation of Southern Africa (AFSA) for resolution. The dispute shall be resolved in accordance with the rules and procedures of AFSA.
8.4. This clause will not preclude the Parties from obtaining interim relief on an urgent basis in a Court of competent jurisdiction pending the decision of the Arbitrator. To this end, the Parties hereby consent to the jurisdiction of the South Gauteng High Court, Johannesburg.
9. COMMUNICATIONS
All communications between the Parties with respect to this Agreement shall be in writing and in English language and shall be delivered by hand or sent by prepaid post courier or electronic mail directed to the following addresses (or to another address which the addressee notifies for the purpose of this Clause):.
Notice to Sumo Tech shall be sent to:
Sumo Tech Proprietary Limited
9 Brands Hatch Close
Kyalami Business Park
Midrand
Email address: info@sumotech.co.za
Notice to Client shall be sent to the Client’s address as specified in the Service Level Agreement, Ordering Document and/or the Quotation:
A notice shall be deemed received on the date of personal delivery, or receipt of email has been confirmed, or seven (7) days after the registered airmail letter is dispatched.
10. MISCELLANEOUS
10.1. Survival Clause: All terms and conditions of these Terms and Conditions which are destined (whether expressed or not) to survive the duration or termination of Service Level Agreement, Ordering Document and/or the Quotation shall so survive.
10.2. Waiver: No delay or failure by either party hereto to exercise any of its power rights or remedies hereunder shall operate as a waiver of them nor shall any single or partial exercise of such powers, rights or remedies preclude any further exercise of them. Any waiver by either Party shall be in writing to be effective and binding.
10.3. Entire Agreement: These Terms and Conditions along with Service Level Agreement, Ordering Document and/or the Quotation contain the whole agreement between the Parties relating to the delivery of Services or Products supersede all previous correspondence, documents and all other kinds of communications exchanged or agreement concerning the same.
10.4. Severability: If a court finds any provision of theseTerms and Conditions void or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein, shall not in any way be affected or impaired, provided that in such case the invalid provision shall be automatically replaced by a new legally valid provision which resembles as much as possible the purpose and substance of the invalid provision.
10.5. Headings: Headings contained in this Agreement are for convenience only and do not affect the interpretation of the provisions of this Agreement.
10.6. Force Majeure: In the event of a Force Majeure situation (as defined hereinafter) the Party being delayed thereby shall inform the other Party to the Agreement thereof as soon as possible but in any event within five (5) business days after the commencement of such Force Majeure situation and specify the nature of the Force Majeure situation as well as the estimated duration thereof.
10.7. In the event the Force Majeure situation continues for a period of more than thirty (30) business days, then either Party is entitled to terminate the Agreement affected thereby by simple notice in writing and without either Party being liable for any claims or damages towards the other Party. If the affected Party does not wish to terminate the Agreement in accordance with the above, the respective Parties’ rights and obligations will be suspended, and a new time schedule shall be agreed upon between the Parties
Counterparts Signature
The Agreement may be signed in two or more counterparts, and the signed counterparts, taken together, will constitute a binding Agreement between the Parties.
BizBox Terms and Conditions
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