Terms and Conditions of Sale of Intellistor (Pty) Ltd  - Reg No 2005/032895/07

 1              INTERPRETATION

1.1          unless the context indicates a contrary intention:

1.1.1      an expression which denotes any gender includes the other genders, a natural person includes an artificial person and vice versa and the singular includes the plural and vice versa;

1.1.2      the following expressions shall bear the meanings assigned to them below and related expressions shall bear corresponding meanings:

1.1.2.1   “Agreement” shall mean this reseller agreement and the credit approval letter which may be issued to the Customer by Intellistor (Pty) Ltd, as may be amended from time to time in writing, including all annexures, addenda, schedules, reports and any special conditions attached to the Customer’s Quotation, as the case may be, and all of which shall be signed by or on behalf of the Parties;

1.1.2.2   “Applicable Law” shall mean any of the following South African laws, from time to time, to the extent that the same applies to a Party or the Services (including the performance, delivery, receipt or use of the Services, as applicable and wherever occurring):

1.1.2.2.1               any statute, regulation, policy, by-law, directive, notice or subordinate legislation (including treaties, multinational conventions and the like having the force of law);

1.1.2.2.2               the common law;

1.1.2.2.3               any binding court order, final judgment or decree;

1.1.2.2.4               any applicable industry code, directive, policy or standard enforceable by law;

1.1.2.2.5               any applicable directive, policy or order that is given by a regulator.

1.1.2.3   “Intellistor” means Intellistor  (Pty) Limited, a private company incorporated under the company laws of the Republic of South Africa under registration number 2005/032895/07;

1.1.2.4   “Credit approval” means the granting of credit to the Customer at the sole discretion of Intellistor, and on the terms stated on the credit approval letter, subject to the terms of this Agreement;

1.1.2.5   ”Confidential Information” means any information or data which by its nature or content is identifiable as confidential, and/or proprietary to either Party, and or any third Party(including without limitation any end user) and which is disclosed in confidence by the disclosing party to the receiving Party for the purpose of this Agreement;

1.1.2.7   “Customer” means the person whose name appears on the customer application which is annexed hereto, or if no such application is annexed hereto, or no name appears thereon, or in any other circumstances, any person or persons at whose request or on whose behalf the supplier undertakes to supply any goods, do any business, or provide any advice or service;

 1.1.2.8   “Intellectual property” means all copyright, rights in business names, trademarks, trade names, service marks, patents, designs and/or inventions as well as all rights to source codes, trade secrets, confidential information, know-how and all other rights of a similar character (regardless of whether such rights are registered and/or capable of registration) and all applications and rights to apply for protection of any of the same;

1.1.2.9   “Order” means the quotation sent to the Customer by Intellistor, which on acceptance by the Customer, will be deemed the Customer’s Order;

1.1.2.10                “Parties” shall mean both Intellistor and the Customer, and “Party” shall mean either one of them as the context requires;

1.1.2.11                “Products” shall mean all goods and/items to be supplied and provided under this Agreement by Intellistor to the Customer;

1.1.2.12                “Quotation” means the offer by Intellistor to supply the Products and/ or Services to the Customer in accordance with the provisions of this Agreement;

1.1.2.13                “Services” means the services rendered by Intellistor, detailed in the Order to the customer;

1.1.2.14                “Signature” means a hand-written mark or electronic signature as defined in terms of the Electronic Communication and Transactions Act 25 of 2002, as amended;

1.1.2.15                “Usage Fee” shall mean the difference between the original selling price of the Product and the market related value of such Product which shall be assessed and calculated by the relevant Intellistor Manager;

1.1.2.16                “VAT” shall mean value added tax in terms of the Value Added Tax Act, No 89 of 1991, as amended

2              RECORDAL

2.1          It is recorded that the only basis upon which the supplier is prepared to do business with the customer is that, notwithstanding anything in the customer’s enquiry, specification, acceptance, order or other documentation or any other documentation or discussion/s to the contrary, the terms and conditions contained herein shall operate in respect of any and all business between the customer and the supplier.

2.2          All and any business undertaken, provided whether gratuitously or not by the supplier is and shall be subject to the terms and conditions contained herein and each term and condition shall be deemed to be incorporated in and to be a term and condition of any agreement between the supplier and the customer.

2.3          The Customer warrants that:

2.3.1      it has the legal right and full power and authority to execute and deliver, and to exercise its rights and perform its obligations under this Agreement and all the documents which are to be executed by it as envisaged by this Agreement; and

2.3.2      nothing contained in this Agreement will result in a breach of any agreement, licence or other instrument, order, judgment or decree of any Court, governmental agency or regulatory body to which it is bound.

2.4          By signing this agreement the Customer and surety authorise Intellistor to:

2.4.1      contact any trade references and to verify any information provided in this application;

2.4.2      perform a credit search on their record with one or more of the registered credit bureaus (as defined in the National Credit Act 34 of 2005, as amended), when assessing this application for credit;

2.4.3      engage in ongoing monitoring of the Customer’s behavior by researching its records at a registered credit bureau;

2.4.4      disclose and/ or convey information relating to the Customer’s ability to meet its payment obligations as well as any other information that may be applicable to credit control companies, banks and other institutions involved in rating credit.

2.5          The Customer agrees that Intellistor shall not be held liable for the disclosure of any of this information to such third parties and that no further specific consent shall be required thereto.

3              QUOTATIONS AND ORDERS

3.1          All Quotations shall remain valid for a period of 1 (one) day from date of Quotation or until the date of issue of a new Intellistor price list, whichever occurs first.

3.2          All Quotations are subject to the availability of Products or Services and the prices quoted are subject to any increase in the cost price, including currency fluctuations affecting Intellistor before dispatch of the Products or the commencement of Services.

3.3          On acceptance of the Quotation which shall be deemed to take place at the head office of Intellistor in Midrand, any terms and conditions accompanying the Customer’s order not agreed to in writing by an

3.4          No variations to the Orders in terms of this Agreement will be binding on Intellistor until Intellistor has accepted the variation, and sent a revised Quotation to the Customer confirming the variation in writing.

3.5          The Customer shall pay all additional costs incurred as a result of any act or omission on the part of the Customer, including suspension of work; modifications or requirements; failure or delay in giving particular requisites to enable work to proceed on schedule; or requirements that work be completed earlier than agreed in the Quotation.

3.6          Any additional time spent by Intellistor as a result of the provisions of clause 3.5 above, shall be charged at Intellistor’s standard charge rate as stated in the Quotation.

3.7          In the event of this Agreement being subject to the provisions of the CPA, the Customer may cancel or withdraw an order but in such event Intellistor  will be entitled to charge a reasonable cancellation fee.

4              PURCHASE PRICE AND TRADING TERMS

4.1          The Customer shall pay the amount on the Order at the offices of Intellistor, prior to delivery by either cash payment, or internet banking into Intellistor’s bank account.

4.2          All payments shall be made in South African Rands, free of conditions without deduction or set off.

4.3          No extension of payment terms will be permitted unless agreed to in writing by a duly authorised representative of Intellistor.

4.4          Any discount or rebate approved by an authorised representative of Intellistor will only be valid and binding if reduced to writing. Discounts and rebates will be forfeited if full payment is not made by or on the due date.

4.5          Intellistor shall be entitled to invoice separately for each delivery or performance.

4.6          Intellistor may at its election provide a certificate duly signed by its Managing director, recording the amount that the customer owes to Intellistor. The Customer agrees that Intellistor may take judgment based on the amount recorded therein.

 

4.7          The Customer shall pay interest at the maximum percentage allowed in law above the publicly quoted basic rate per annum ruling from time to time at which Nedbank Limited lends on overdraft to its corporate clients, calculated nominal annual compounded monthly, on all amounts owing by the Customer to Intellistor which have not been paid on the due date thereof, reckoned from the due date thereof until date of payment. Such interest shall be payable on demand.

4.8          The credit limit granted by Intellistor to the Customer may not be exceeded without prior written consent. Intellistor reserves the right to change the credit limit at any time without notice and any amount over the credit limit will be supplied on a strictly cash on delivery basis.

5              DELIVERY AND PERFORMANCE

5.1          Subject to the provisions of the CPA (if applicable) Intellistor:

5.1.1      shall be entitled in its sole discretion to split the delivery or performance of the Products and/or Services ordered in the quantities and on the dates it elects;

5.1.2      provide times for the delivery of Products or performance of the Services which shall merely be estimates and shall not be binding on Intellistor unless agreed to in writing by an authorised representative of Intellistor;

5.1.3      require that delivery of the Products to the Customer takes place at the place of business of Intellistor, on proof of payment by the Customer; and

5.1.4      have the right to engage a third party to transport the Products on behalf of the Customer, if necessary, and Intellistor shall be authorized to engage a third party as the authorized agent of the Customer, the costs thereof shall be for the Customer’s account.

5.2          Any delivery note (copy or original) signed by the Customer or its authorized agent shall be conclusive proof that delivery was made to the Customer.

5.3          Signature of the delivery note constitutes prima facie proof that the Products and Services delivered comply with the Customer’s Order.

5.4          In the event of Intellistor acceding to any request by the Customer to postpone delivery of the Products, or in the event of the Customer failing to give Intellistor sufficient information to enable it to process any Order, the Customer shall pay any costs and expenses thereby incurred by Intellistor.

5.5          The Customer agrees that the Products will be offloaded at the nearest accessible point on site. Intellistor shall not be held responsible for any damage to any Products delivered during the delivery process, arising from any cause whatsoever.

5.6          Any repair time or cost estimates given by Intellistor to the Customer shall be estimates only and are not considered binding upon Intellistor. Any item handed in for repair to Intellistor may be sold to defray costs if such repair items are not collected within 30 (thirty) days of such repair being carried out.

5.7          All Products taken by the Customer on evaluation or approval demonstration shall be deemed sold if not returned within 7 (seven) days from delivery in perfect condition, in the original packaging and with all accessories and manuals intact.

6              WARRANTIES

6.1          Warranty of Quality

6.1.1      Subject to the conditions of the CPA (if applicable), no warranties, guarantees or representations, expressed or implied or tacit, whether by law, contract or otherwise, and whether they induced the contract or not, which are not set out in this Agreement, shall be binding on Intellistor. The Customer waives any right (common law or otherwise) it may have to rely on.

6.1.2      New products carry the warranty in accordance with the manufacturer’s product specific warranty.

6.1.3      All warranties are immediately null and void if (inter alia):

6.1.3.1   any Product has been tampered with or found to be damaged and/ or defaced and/ or altered in any way by the Customer; and/ or

6.1.3.2   the seals on the Product have been broken by anyone other than Intellistor; and/ or

6.1.3.3   the Customer has made use of the Products in a way that appears to be inconsistent with the manufacturer’s specifications and/or

6.1.3.4   the Products have been utilised in a way that is not ordinarily used and such use has caused the damage and/ or defect; and/or

6.1.3.5   the defect and/or damage reported by the Customer to Intellistor applies to any ordinary wear and tear in respect of the Products; and/ or

6.1.3.6   any component(s) have been deliberately removed or found to be missing by Intellistor from the Product being returned; and/ or

6.1.3.7   any other situation specifically included in the supplier’s policies and/ or warranties which may specifically prohibit the Customer from using it as a reason to return a Product.

6.1.4      Notwithstanding the contents of clause 6.1 above, insofar as the Customer enjoys protection under the CPA, the

6.1.4.1   The Customer may return the Product to Intellistor if the goods do not satisfy the requirements of Section 55 of the CPA in which event Intellistor shall either:

6.1.4.1.1               replace the failed, unsafe or defective Product within the warranty arrangement dealt with in clause 6.1.2; or

6.1.4.1.2               refund the Customer the price paid by the Customer (as reflected in the tax invoice provided by the Customer to Intellistor) for the defective Product

6.1.4.2   It is the responsibility of the Customer to advise Intellistor in writing of any specific purpose the Products and/ or Services are intended for. If, after having notified Intellistor of this intended use, the Product recommended by Intellistor does not fulfil the purpose as stated by the Customer, the Customer shall notify Intellistor within 30 (thirty) days from the date of purchase of the Product of this failure. Intellistor shall then replace the Product and/ or Service with a more suitable solution or credit the Products and/ Service to the Customer’s account.

6.1.5      Where the provisions of the CPA are applicable in respect of the return and/ or replacement of Products and/or Services as referred to in 6.1.4 above, Intellistor shall have a further right to levy a reasonable Usage Fee in accordance with the provisions of the CPA. Such Usage fee shall be paid by the Customer to Intellistor before the refund or replacement of any Product.

6.2          General Warranties

6.2.1      The Customer warrants that:

6.2.1.1   no representations were made by Intellistor in regard to the suitability of the Products and/ or Services or any of its qualities other than those contained herein;

6.2.1.2   neither Intellistor nor any of its employees, agents or suppliers shall be liable for negligent or innocent misrepresentations made to the Customer;

6.2.1.3   it is the sole responsibility of the Customer to determine that the Products and/ or Services ordered are suitable for the purposes of intended use;

6.2.1.4   it shall not translate software received into any other computer language or tamper with the binary code which is proprietary in nature;

6.2.1.5   where the end user of the Products and/ or Service is either a foreign government or for export outside the Republic of South Africa or possibly for proliferation activities it shall immediately disclose such circumstances to Intellistor;

6.2.1.7   it shall not supply any Products and/ Services to end users in high conflict zones or entities with known foreign corrupt practices;

6.2.1.8   it shall not procure Products and/ or Services for export to end users in Embargoed destinations and known terrorist supporting countries; and

6.2.1.9   it shall not procure any Products and/ or Services intended for the use in the design, construction, operation or maintenance of any nuclear facility.

6.3          National Credit Act

6.3.1      The Customer further warrants in favour of Intellistor that:

6.3.2      the aggregate annual sales of the Customer exceeds R1,000,000.00 (one million rand); and/or

6.3.3      the net asset value of the Customer exceeds R1,000.000.00 (one million rand).

6.4          Regulatory Compliance

6.4.1      Both Parties must generally act, and must ensure that their directors, officers, employees, and agents act at all times in compliance with the Applicable Law.

6.4.2      The Customer must in particular comply with the Law related to the protection of personal information of the Consumer.

6.4.3      The Customer hereby undertakes and expressly represents to Intellistor that it shall, upon commencement of the relevant provisions of the CPA, do everything necessary to ensure compliance by it with the provisions of the CPA in the provision of the Products and/ or Services.

6.4.4      The Customer warrants that as at the date of Signature of this Agreement, it is fully cognisant of the Applicable Law, including the legal obligations of suppliers, producers, importers, distributors, and retailers as set out in the CPA.

6.4.5      The Customer warrants that it will neither use misleading trade descriptions nor market, promote or supply any Products and/ or Services in a misleading, fraudulent or deceptive way, whether by the use of exaggeration, innuendo or ambiguity, or fail to disclose a material fact if that failure amounts to a deception or by a failure to correct an apparent misapprehension on the part of the consumer, in respect of:–

6.4.5.1   the nature, properties, advantages or uses of the Products and/ or Services; and/ or

6.4.5.2   the manner and the price at which Products and/ or Services may be supplied

6.4.6      The Customer hereby irrevocably unconditionally agrees to indemnify and keep indemnified, Intellistor, on demand, for any and all liabilities, damages, penalties, actions, judgments, costs, expenses or disbursement of any kind whatsoever which may be imposed on, incurred by or asserted against the Customer in any way resulting from or arising of a breach of any warranty contained in clause 6 above.

7              RETURNS AND REPAIRS

7.1          Subject to the provisions of the CPA (if applicable):

7.1.1      Intellistor and that of its supplier’s liability is limited to the cost of the repair or replacement of faulty Products or granting of a credit note to the value of such Products which shall be at the sole discretion of Intellistor;

7.1.2      the Customer shall have no claim under this Agreement unless Intellistor has received notification of the alleged defect by hand or prepaid registered post within 7 (seven) days of the alleged breach or default occurring;

7.1.3      Intellistor shall have 30 (thirty) days from receipt of the notice to respond to any claim under this Agreement;

7.1.4      all claims shall be supported by the original tax invoice issued by Intellistor in order for Intellistor to consider whether such claim constitutes a valid claim; and

7.1.5      any warranty shall not be valid, unless the Customer returns any defective Product to Intellistor together with the original, undamaged packaging material.

8              HANDLING FEE

8.1          Any costs incurred in effecting the return shall be for the Customer’s account.

8.2          In the event of the return Intellistor reserves the right to levy a handling fee of 10% (ten per cent) of the purchase price reflected on the tax invoice of any Product returned by the Customer to Intellistor, if the return of the Product takes place within 7 (seven) days from the date of invoice.

9              RISK AND OWNERSHIP

9.1          The risk of damage to and/ or destruction of any relevant Product(s) passes to the Customer on delivery thereof by Intellistor to the Customer.

9.2          Ownership of the Products shall not pass to the Customer until payment of the full purchase price has been received by Intellistor.

10           FORCE MAJEURE AND LIMITATION OF LIABILITY

10.1        The Customer shall not have a claim against Intellistor for any delay or failure of Intellistor 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 Intellistor. (“force majeure”);

10.2        The performance of the obligations of Intellistor shall, subject to 10.3 below be suspended for the duration of the force majeure, which shall be deemed to commence only upon the date of written notice by Intellistor to the Customer. Upon cessation of the force majeure, this agreement shall again become fully operative and Intellistor shall immediately resume performance;

10.3        If the suspension of performance continues for more than 60 (sixty) consecutive calendar days, then either party may summarily terminate this agreement by written notice to the other party, prior to the cessation of the force majeure;

10.4        Any claim by the Customer against Intellistor, howsoever arising shall in the aggregate be limited to the amount reflected on the tax invoice in respect of which the claim relates. In any event, Intellistor will not be liable to the Customer for, indirect or special damages and/or, loss of income or profit, howsoever arising whether or not caused by its employees, agents and/or contractors, and regardless of form or cause of action. The provisions of this clause are also stipulated for the benefit of the employees, agents and/or contractors of Intellistor.

11           INTELLECTUAL PROPERTY

11.1        All rights, title and interest in and to all intellectual property relating to any Product and/ or Services owned by either Party to this agreement, their vendors and/or suppliers and the software used to implement the Products and/ or Services shall remain the sole property of such parties, their vendors or suppliers.

11.2        Neither Party shall in any manner alter or effect the display of the respective rights in the intellectual property of the other Party, vendor or suppliers without the prior written approval of the other Party, vendor or supplier.

11.3        Where there is a purported breach by the Customer of the intellectual property provisions recorded herein, Intellistor reserves the rights to seek inter alia an appropriate order from any court of law for interim and final relief.

12           BREACH AND TERMINATION

12.1        If either Party:

12.1.1    is in material breach of any terms or conditions of this agreement and fails to remedy the breach within 7 (seven) days after written notice thereof; or

12.1.2    commits an act of insolvency within the ambit of the Insolvency Act, No 24 of 1936 (as amended)(“the Insolvency Act”); is deemed unable to pay its debts within the ambit of the Companies Act No 71 of 2008 (as amended)(“the Companies Act”), alternatively any provision of the Close Corporations Act No 69 of 1984 (as amended)(“the Close Corporations Act”), as the case may be, finds himself in circumstances capable of being wound up in terms of the Companies Act, alternatively the Close Corporations Act, as the case may be; is deregistered or applies for deregistration in terms of the Companies Act; alternatively the Close Corporations Act, as the case may be; or is subject to application by a person other than a Party for the provisional winding up or business rescue proceedings of such Party, or a special resolution is passed for the winding up of such Party; or:

12.1.3    has judgment taken against it and fails to satisfy or apply to have same set aside within 7 (seven) calendar days of becoming aware thereof; or:

12.1.4    without the prior written consent of the other Party, undergoes a change in its shareholding or member’s interest so that a new person owns the majority of its voting share capital or member’s interest.

12.2        Upon the occurrence of any of the above mentioned events, the agreed Party shall be entitled at its election and without prejudice to:

12.2.1    enforce specific performance; and/ or

12.2.2    recover such damages as it may have sustained.

12.3        The Customer hereby consents to the jurisdiction of Section 45 of the Magistrates Court Act No 32 of 1944 as amended, in respect of all amounts or causes of action arising out of Products and/ or Services rendered/supplied/delivered even through the amount involved exceeds the jurisdiction of such court.

12.4        Without derogating from clause 12.3 above, the customer consents to the jurisdiction of the South Gauteng High Court, Republic of South Africa.

12.5        In the event of Intellistor instructing its attorneys or collection agency to collect any overdue amount or enforce any other provision of this Agreement, all tracing, collection charges and legal fees as between attorney and client shall be for the Customer’s and surety’s account.

12.6        No claim may be instituted against Intellistor by the Customer arising from this Agreement other than by way of arbitration. The dispute shall be resolved in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”) by a single arbitrator appointed by “AFSA”. Should the Customer fail to declare a dispute within 1 (one) year of the purported action arising, the Customer’s claim will lapse and will be of no force and effect.

12.7        Either party may terminate this agreement on 20 (twenty) business days written notice.

13           DOMICILIUM AND NOTICES

13.1        The Customer and surety choose their domicilium citandi et executandi as the Customer’s physical address reflected on the first page of the reseller application for all purposes with respect to the court process, notices or documents or communication

 

13.2        Intellistor chooses its domicilium citandi et executandi as:  Intellistor (Pty) Limited, Suni Avenue 54, Unit 1, Corporate Park South, Midrand, Gauteng, Attention: Managing Director.

13.3        Either party may change their domicilium citandi et executandi on 7 (seven) days written notice given to the other.

14           CESSION

14.1        The Customer hereby irrevocably cedes, assigns and transfers, makes over unto and in favour of Intellistor, all the Customer’s right and title and interest in and to its claims against its debtors, both present and future and from whatsoever cause arising, as security for all or any of the amounts which the Customer may now or at any time in the future owe to Intellistor.

14.2        The Customer irrevocably authorises Intellistor in its absolute discretion to claim from all or any of the Customer’s debtors the whole or any portion of the indebtedness of any one or more of them to give a valid receipt or discharge for such indebtedness, to take any action in its name in any court or competent jurisdiction and to proceed in execution thereunder against all or any of the said debtors to cede, transfer, negotiate, pledge or otherwise deal with all or any of the said debtors, to exchange promissory notes, cheques, agreements, documents of title or any other security held by the Customer.

14.3        The security created by the cession shall be a continuous one, not withstanding any fluctuation in the amount of the indebtedness of the customer to Intellistor.

14.4        The Customer hereby undertakes on demand, to furnish Intellistor with such information concerning its debtors as may be reasonably required, to enable Intellistor to give effect to the provisions of this clause.

14.5        This cession shall operate as a cession of all the Customers revisionary rights where the Customer has entered into prior deeds of cession.

15           SECURITY

15.1        Intellistor reserves the right , in its sole discretion to request reasonable security for the due performance of any of the Customer’s obligations. If Intellistor receives security, it shall serve as a pledge in favour of Intellistor for present and past debts.

15.2        Intellistor shall be entitled to retain or realize such pledges, as it deems expedient.

15.3        In the event that Intellistor requests reasonable security from the Customer, which security is not forthcoming within 7 (seven) days of the request, Intellistor shall be entitled to withdraw or cancel this Agreement in whole or in part, without incurring any liability whatsoever.

16           CUSTOMER CONSENT

16.1        The Customer hereby agrees and acknowledges that Intellistor shall monitor the Customer’s payment behaviour by researching both the company and its Directors/Members/Shareholders record with any credit bureau on an ongoing basis as well as transmit any details of how the Customer has conducted his/her account in meeting its obligations.

16.2        The Customer acknowledges that it may be necessary for Intellistor to forward certain customer information to its suppliers in accordance with its supplier requirements from time to time. The Customer agrees that it shall be responsible for communicating and obtaining such consent from its customers and/ or end users for such purposes.

17           SET OFF

17.1        It is agreed that set-off shall operate automatically as a matter of law at the moment reciprocal debts between Intellistor and the Customer come into existence and independently of the will of the parties and it shall not be necessary for either Intellistor or the customer to specifically raise set-off.

17.2        Upon the operation of automatic set-off aforementioned, the debts shall be mutually extinguished to the extent of the lesser debt

18           OBJECTIONS TO STATEMENTS

                If the Customer fails to object to any item appearing on Intellistor’s statement of account within 30 (thirty) days of the dispatch of the statement the account shall be deemed to be in order.

19           SURETYSHIP

19.1        The signatory, by his/her signature hereto, binds himself/herself in favour of Intellistor, its successors-in-title and assigns as surety and co-principal debtor in solidum with the Customer for the due and proper performance by the Customer of its obligations to Intellistor under this Agreement.

19.2        The signatory warrants that he is duly authorized to represent and bind the Customer, and that he has read and understood each term and condition of this agreement.

19.3        The signatory in his personal capacity, and in his representative capacity as the authorized representative of the Customer, confirms that he accepts the terms and conditions of this agreement, and considers it binding jointly and severally on himself/herself and the Customer.

19.4        Should the company launch business rescue proceedings or be placed under business rescue the surety will as guarantor make immediate payment of the monies then owing by the customer to Intellistor on demand.

20           FINES AND PENALTIES

20.1        Intellistor shall only be responsible to pay on demand any fines or penalties levied against it by any regulatory authority arising from any non-compliance of the Products and/or Services with any Applicable Law.

20.2        No payment of any such penalty by Intellistor shall constitute an admission by Intellistor of its liability or culpability in respect of such penalty or a waiver of its right to recover any amounts from the Customer and Intellistor may recover such amount of any such penalty from the Customer for which the Customer is liable in terms of this clause.

21           GENERAL

21.1        This document constitutes the sole record of the Agreement between the Parties in relation to its subject matter.

21.2        No alteration or variation to, or consensual cancellation of this agreement shall be of any force or effect, unless it is recorded in writing and signed by an authorized representative of Intellistor.

21.3        No relaxation or indulgence granted by Intellistor shall be deemed to be a waiver of Intellistor’s rights and such relaxation or indulgence shall not be deemed a novation of any of these terms and conditions.

21.4        In the event that 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 shall 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

21.5        The Customer shall not be entitled to cede, assign, delegate, or otherwise transfer the benefit or burden of all or any part of this Agreement without the prior written consent of Intellistor, which consent shall not be unreasonably withheld or delayed save that the onus of proving that such consent is being unreasonably withheld shall rest on the Party alleging the same. Intellistor shall be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third party.

21.6        No indulgence, which a Party may grant to another Party, shall constitute a waiver of any of the rights of the grantor unless in writing signed by both Parties.

21.7        All costs, charges and expenses of any nature whatever which may be incurred by a Party in enforcing its rights in terms of this Agreement, including without limiting the generality of the aforegoing, legal costs on the scale of attorney and own client and collection commission, irrespective of whether any action has been instituted, shall be recoverable on demand from the Party against which such rights are successfully enforced and shall be payable on demand.

21.8        All provisions in this Agreement are, notwithstanding the manner in which they have been put together or linked grammatically, severable from each other. Any provision of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatsoever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions of this Agreement shall continue to be of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provisions if they were aware of such unenforceability at the time of its execution

21.9        This clause 21 shall survive termination of this Agreement.

21.1        The Customer agrees to inform Intellistor in writing at least 7 (seven) days before filing notices (prescribed in the Companies Act) to be placed under “business rescue” with the Companies and Intellectual Property Commission