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Term And Conditions

Standard Terms & Conditions of Sale

  1. DEFINITIONS AND INTERPRETATION
    1. “Affiliates” means in relation to either of the Parties hereto, any other Person who or which, directly or indirectly (i) is controlled by either of the Parties hereto, or (ii) controls either of the Parties, or (iii) is under common control of either of the Parties hereto, respectively. Reference to either the Licensor or Licensee in this Agreement will include their Affiliates. Affiliates of either Party shall be deemed to be bound by the terms and conditions of this Agreement as if specifically incorporated herein. For purposes of this definition, an entity “controls” another entity if it has the power to direct the management and policies of the other entity, through ownership of 50% (fifty percent) or more of the voting securities of an entity, representation on an entity’s board of directors or other governing body, or by contract;
    2. “Agreement” means the agreement recorded in this document;
    3. “Business Day” means any day other than a Saturday, Sunday or official public holiday in South Africa;
    4. “Commencement Date” means the date of signing this agreement by the last person signing;
    5. “Confidential Information” means any information of whatever nature which has been or may be obtained by either party from the other party pursuant to this Agreement, whether in writing or in electronic form or pursuant to discussions and negotiations between the Parties or which can be obtained by examination, testing, visual inspection or analysis, including without limitation, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, agencies, customer lists, price lists, studies, findings, computer software, inventions or ideas which is the proprietary information or trade secret of either Party or its Affiliates which is either marked as confidential or by its nature should reasonably be understood and treated as confidential. For the avoidance of doubt, Confidential Information is inclusive of any intellectual property that either Party may disclose to the other pursuant to this Agreement;
    6. “Customer Premises Equipment” or “CPE” means all computer and / or communications equipment, machines, its features, conversions, upgrades, elements, or accessories, or any combination of them that LOOPHOLD may use to provide Services to CUSTOMER;
    7. “CUSTOMER” means the person whose name appears on the Customer Application to which this agreement is annexed, or if no 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 LOOPHOLD undertakes to supply any PRODUCT(s), do any business, or provide any advice or Services;
    8. “Parties” means CUSTOMER and LOOPHOLD, and “Party” means either of them as the context may indicate;
    9. “PRODUCT(s)” means any item(s) of whatsoever nature that are supplied by LOOPHOLD to CUSTOMER in terms of this Agreement;
    10. “LOOPHOLD” means Galix Consulting (Pty) Ltd. (Registration No: 1999/010455/07) T/A LOOPHOLD Security Distribution, herein represented by Mr. Martin Tassev, in his capacity as MANAGING DIRECTOR, who warrants that he is duly authorized to represent and bind LOOPHOLD herein;
    11. “Normal Business Hours” means the time between 8:00 AM and 5:00 PM, on any Business Day;
    12. “Services” means any service(s) of whatsoever nature that are provided by LOOPHOLD to CUSTOMER in terms of this agreement;
    13. “Service Hour” means any 60 (sixty) minute period, or part thereof, actually spent by a LOOPHOLD representative, assisting CUSTOMER with technical related issues and / or queries;
    14. “Statement of Work” means a written statement of work signed off by both Parties, and which will governing a particular Service as agreed between the Parties and issued pursuant to this Agreement;
    15. “TERRITORY” means the Republic of South Africa and other countries authorised by the VENDOR(s);
    16. “VENDOR(s)” means the manufacturer(s) of PRODUCT(s) supplied to CUSTOMER in terms of this Agreement;
    17. Clause and paragraph headings are for purposes of reference only and shall not be used in interpretation of this Agreement or any particular clause of this Agreement.
    18. Unless the context clearly indicates a contrary intention, any word connoting:
      1. any gender includes the other gender;
      2. the singular includes the plural and vice versa;
      3. natural persons includes legal persons and vice versa;
      4. Insolvency includes provisional or final, liquidation or Business Rescue Proceedings.
    19. When any number of days is prescribed such number shall exclude the first and include the last day unless the last day falls on a Saturday, Sunday, or a public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding Business Day.
    20. A reference to an enactment is a reference to that enactment as at Commencement Date and as amended or re-enacted from time to time.
    21. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
    22. Where any term is defined within the context of any particular clause in this Agreement, then, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, the term so defined shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that the term has not been defined in the definition clause.
    23. In the interpretation of this Agreement, the contra proferentum rule of interpretation shall not apply (this Agreement being the product of negotiations between the Parties), nor shall this Agreement be construed in favour of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement.
    24. The use of the words ‘includes’ ‘includes’ and ’including’ shall mean ’including, without limitation’, and includes, without limitation’, respectively, and further the words ‘include’, ‘includes’ and ‘including’ followed by a specific example or examples shall not be construed or interpreted 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 and/or such specific example or examples and the words ‘other’ or ‘otherwise’ shall not be construed eiusdem generis with any preceding words where a wider construction is possible
    25. Any reference to a Party hereunder shall include such Party’s Affiliates, successors-in-title permitted assigns and any persons deriving title under it.
    26. The descriptive clause headings have been inserted solely for convenience of reference only and shall not be taken into account in the interpretation of the content of the clauses
    27. Reference to any agreement or document (including this Agreement), shall include reference to such agreement and documents as they are as at the Effective Date, or as they may after the Effective Date, be amended, modified, varied, supplemented or replaced from time to time, with such amendment, modification, variation, supplementation or replacement to be reduced to writing and signed by duly authorised representatives of each Party
    28. The word ‘material’ means, when used as an adjective in conjunction with an event, condition, circumstance, effect or other item, that there is a substantial likelihood that a reasonable expert would attach importance to the event, condition, circumstance, effect or item in evaluating the Party to which it relates and/or the event, condition, circumstance, effect or item contemplated in this Agreement
    29. Words and phrases, the definitions of which are contained or referred to in the Companies Act, shall be construed as having the meanings thereby attributed to them, and shall for all intent and purposes be applicable to the Licensor as if the Licensor is a Private Company duly incorporated in terms of the Company Laws of the Republic of South Africa and subject to the Companies Act of the Republic of South Africa.
  2. THESE TERMS AND CONDITIONS PREVAIL
    1. Subject to clause 16 hereof, this Agreement shall commence on the Commencement Date and shall
      remain in force until terminated on at least 90 (ninety) days prior written notice from either Party, provided that any PRODUCT(s) and / or Services ordered by CUSTOMER and accepted by LOOPHOLD prior to the effective date of such a termination shall be delivered by LOOPHOLD unless otherwise stated in writing by CUSTOMER.
    2. All and any business undertaken, including any advice, information or service provided whether gratuitously or not by LOOPHOLD 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 LOOPHOLD and
  3. NO VARIATIONS OR AMENDMENTS
    1. No addition to, variation of, or agreed cancellation of, this Agreement shall be of any force or effect unless in writing and signed by or on behalf of the
  4. QUOTATIONS AND PLACING ORDERS
    1. A quotation given by LOOPHOLD to sell PRODUCT(s) and / or Services to the CUSTOMER constitutes an offer by LOOPHOLD to CUSTOMER (“quotation”).
    2. Acceptance of a quotation by CUSTOMER will be accompanied by a purchase order for the PRODUCT(a) and/or Services detailed in the quotation (“acceptance”).
    3. Only upon acceptance by LOOPHOLD of purchase order from CUSTOMER, a valid and binding contract of sale is concluded between LOOPHOLD and CUSTOMER (“sale”) on the further terms agreed to hereunder for the price as quoted (“the purchase price”).
    4. No verbal quotations by LOOPHOLD shall be accepted at time of order.
    5. LOOPHOLD may revoke a quotation at any time, prior to acceptance.
    6. LOOPHOLD may accept or reject in whole or in part any order placed upon it by CUSTOMER pursuant to the quotation. Accordingly, a contract shall only come into force between LOOPHOLD and CUSTOMER if after receipt by LOOPHOLD of CUSTOMER’s order or acceptance of the quotation, LOOPHOLD confirms to CUSTOMER that such a contract has been concluded or if LOOPHOLD supplies, or tenders to supply, the PRODUCT(s) and / or Services in question to CUSTOMER.
    7. The quotation is subject to rates of exchange, freight charges, insurance, railage costs, (“variable costs”) ruling at the date of the quotation. Any variation to the variable costs subsequent to the date of quotation but prior to the order being placed shall entitle LOOPHOLD to vary the amount of the quotation accordingly.
    8. Where travel is necessary related to services provided by LOOPHOLD, any travel and/or accommodation charges will be for CUSTOMER’s direct account, subject to the Customers prior written consent to such charges.
    9. On acceptance of an order LOOPHOLD will make reasonable efforts to meet the estimated delivery date but shall not be liable for any failure to deliver for causes beyond its control.
    10. Where the PRODUCT(s) or any part thereof are to be imported, this Agreement is subject to the condition that LOOPHOLD’s order is accepted and confirmed by the VENDOR(s) and that delivery is made there under in due course.
    11. Any additional terms, not recorded in this Agreement relating to the PRODUCT(s) and/or Services, as detailed in a quotation may be stipulated on the quotation.
  5. PURCHASE PRICE AND PAYMENT
    1. Prices charged would be those ruling at purchase order acceptance, of the PRODUCT(s) and/or Services and as stated in the quotation.
    2. Unless otherwise expressly stated, prices are exclusive of Value Added Tax (VAT). VAT  shall be for the account of CUSTOMER, and CUSTOMER shall pay or reimburse to LOOPHOLD the amount of any VAT simultaneously with the purchase price.
    3. CUSTOMER shall be obliged to pay to LOOPHOLD in addition to the contract price herein:
      1. The amount of any tax, imposed by any law, regulation or enhancement of whatsoever nature which comes into force on the date after the date on which any price charged is determined.
    4. In particular, but without limiting the generality of the foregoing, LOOPHOLD shall be entitled to increase the contract price in respect of any PRODUCT(s) ordered to make provision for increases in variable costs occasioned as a direct result of any delay caused by CUSTOMER and any such increases shall be substantiated by documentary.
    5. Additional Expenses incurred by LOOPHOLD at the instance of CUSTOMER modifying, or otherwise altering, or making additions to the design, quantities or specifications to the PRODUCT(s) and/or Services subsequent to acceptance, and expenses arising as a result of a suspension of work by LOOPHOLD due to instructions given, save for a suspension of work occasioned as a result of LOOPHOLD’s conduct, or a failure to give instructions by CUSTOMER, shall be added to the purchase price in respect of the relevant PRODUCT(s) and/or Services and such additional costs shall be substantiated by documentary proof.
    6. After the completion of the Customer Credit Application Form (“credit application”) by CUSTOMER, LOOPHOLD shall at its own discretion be entitled to:
      1. Make such enquiries as it may deem necessary to determine whether or not to grant CUSTOMER credit as applied for in the credit application , or on any other terms, or at all;
      2. Inform CUSTOMER of the determination made pursuant of 6.6.1 above, within a reasonable period of time from date of completion of the credit application.
    7. Until LOOPHOLD makes a determination as contemplated in 6.6.1 above and to the extent that it does not, any PRODUCT(s) and / or Services supplied by LOOPHOLD to CUSTOMER shall be supplied on an upfront payment basis only.
    8. The purchase price in respect of any PRODUCT(s) and / or Services sold by LOOPHOLD to CUSTOMER in terms of this Agreement shall be payable:
      1. By CUSTOMER to LOOPHOLD, at LOOPHOLD’s head office or at such other place as LOOPHOLD may direct from time to time , including but not limited to EFT payments.
      2. In South African currency for all companies and entities registered in South Africa and neighbouring countries who can transact in this currency, and the rest in US Dollar without deduction or setoff and free of any exchange; and
      3. During or before the expiry of the credit period indicated on the credit application, with any such credit period in the credit application to commence upon the issuing of an invoice by LOOPHOLD, or if there is no credit period indicated, or no credit period has been approved in terms of 5.6, payment upfront.
    9. CUSTOMER shall pay interest at the public quoted prime rate per annum ruling from time to time at which The Standard Bank of  South Africa Limited lend on overdraft, which rate shall be proved by way of a certificate signed by any Finance Manager of such bank, compounded monthly in arrears on all undisputed amounts due and owing by CUSTOMER to LOOPHOLD 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.
    10. Save to the extent that CUSTOMER has requested that the quotation include the cost for delivery of the PRODUCTS to a specified address and/or location, the purchase price does not include charges for delivery of the PRODUCT(s). Save to the extent that delivery is included in the quotation, CUSTOMER shall provide arrange, at its costs for all delivery  of the PRODUCT(s). If delivery has not been requested and subsequently is requested, CUSTOMER will be responsible for the costs of delivery.
    11. CUSTOMER has no right to withhold undisputed payment for any reason whatsoever. CUSTOMER is not entitled to set off any amount due to CUSTOMER by LOOPHOLD against any debt owed by CUSTOMER to LOOPHOLD, nor shall CUSTOMER withhold any payment by virtue of any alleged counterclaim against LOOPHOLD.
    12. The termination or expiration of this Agreement shall in no event relieve either party from its obligations to pay the other party any sums accrued hereunder prior to such termination or expiration or affect any other provision hereunder other than for non-performance related to services ordered.
  6. RISK
    1. The risk of loss, damage to or destruction to the PRODUCT(s) passes to CUSTOMER on delivery thereof by LOOPHOLD to CUSTOMER. The legal and beneficial ownership of the PRODUCT(s) will remain with LOOPHOLD until all of the sums owed by CUSTOMER to LOOPHOLD in relation to the PRODUCT(s) concerned have been paid in full, unless the PRODUCT(s) are paid for upfront, in which instance, legal and beneficial ownership passes to CUTOMER on date of delivery.
  7. SERVICES
    1. Please refer to LOOPHOLD Services agreement (if applicable).
    2. Please refer to service related terms and conditions in LOOPHOLD quotations for specific services.
  8. MANAGED SERVICES
    1. Please refer to LOOPHOLD Managed Services agreement (if applicable).
  9. REPAIRS
    1. Any repair times given by LOOPHOLD are merely estimates and LOOPHOLD shall not be bound thereby in circumstances where delays are occasioned by factors beyond the control of LOOPHOLD (“excusable delays”).
    2. LOOPHOLD shall have the right of retention and lawful lien over PRODUCT(s) submitted for repairs until such time as CUSTOMER effects payment for the repairs in full.
    3. CUSTOMER hereby authorises LOOPHOLD to defray the cost of such repairs if the item remains uncollected within 90 days of the repair being completed (and the Customer having been notified of the same in writing) by selling any item handed in for repair.
  10. DELIVERY
    1. Partial delivery at the request of the CUSTOMER shall not affect the payment period where a credit period has been approved and where no credit period has been approved CUSTOMER shall pay the full purchase price of the actual PRODUCT(s) delivered, notwithstanding partial delivery.
    2. Any delivery date indicated by LOOPHOLD shall merely be regarded as the estimated date of delivery and shall not bind LOOPHOLD to effect delivery on or near such date. LOOPHOLD will use all reasonable endeavours to deliver on time. Should the delivery date be unreasonable or exceed 7 (seven) days from the original delivery date, the Customer will be entitled to cancel the order without penalty and/ or liability.
    3. CUSTOMER shall accept delivery on the delivery terms agreed.
    4. If delivery of any particular order is to be effected in consignments, LOOPHOLD shall not be obliged to deliver any part of the order until the purchase price that is due in respect of the part of the order that has already been delivered has been paid.
    5. PRODUCT(s) are to be delivered by road, and CUSTOMER shall ensure that the delivery destination shall be easily accessible to road transport vehicles. CUSTOMER shall be responsible for off-loading the PRODUCT(s) at the delivery destination.
    6. CUSTOMER shall be obliged to inspect all PRODUCT(s) upon delivery and shall endorse the delivery note as to any missing or obviously damaged PRODUCT(s). No claims for missing or obviously damaged PRODUCT(s) shall be valid unless the delivery note has been endorsed as aforesaid and unless, in addition, CUSTOMER notifies LOOPHOLD in writing within 10 (ten) business days of the delivery of the PRODUCT(s) of the claim question and the PRODUCT(s) relating to such claim, furnishing full details in regard thereto.
    7. If LOOPHOLD is unable to deliver the PRODUCT(s) to CUSTOMER due to any act or omission on the part of CUSTOMER it shall be entitled to charge CUSTOMER for the reasonable storage costs of the PRODUCT(s), until date of delivery can be effected, save for instances that are beyond the control of CUSTOMER. All such storage costs shall be substantiated by documentary proof.
    8. CUSTOMER shall be obliged to furnish information necessary to enable delivery of the relevant PRODUCT(s) to be effected and if CUSTOMER fails or refuses to do so, or if it fails or refuses to take delivery, the PRODUCT(s) shall, without prejudice to the provisions of clause 7 be deemed to have been delivered to CUSTOMER upon written notification to CUSTOMER.
    9. If LOOPHOLD agrees to engage a 3rd party to transport PRODUCT(s) at the specific request of the Customer, LOOPHOLD is hereby authorised to engage a 3rd party on CUSTOMER’s behalf and on reasonable terms deemed fit by LOOPHOLD. CUSTOMER shall reimburse LOOPHOLD for any costs prior agreed incurred in arranging special delivery, including but not restricted to, the costs of necessary disbursements and insurance. Any documentation pertaining to evidence the said extra costs will be deemed to be prima facie proof thereof.
  11. WARRANTIES AND GUARANTEES
    1. To the extent that PRODUCT(s) supplied by LOOPHOLD are in any way defective, CUSTOMER shall be entitled, within warranty period of the relevant PRODUCT(s), to return the PRODUCT(s) for replacement or repair at the discretion of LOOPHOLD and subject to the manufacturer’s returns and replacement policy.
    2. LOOPHOLD shall be relieved of all obligations in terms of this clause, if:
      1. Persons other than LOOPHOLD have made repairs or modifications, unless such repairs or modifications are made with the prior written consent of LOOPHOLD;
      2. Any PRODUCT(s) are operated with any accessory, equipment or part not specifically supplied or approved in writing by LOOPHOLD
      3. The PRODUCT(s) shall not have been operated or maintained in accordance with LOOPHOLD’s instruction, or under normal use;
      4. The PRODUCT(s) shall not have been properly installed, except where installation was done by LOOPHOLD.
    3. If repairs or replacements are effected by LOOPHOLD, only the parts actually working on and not the complete PRODUCT(s) shall be subject to a new warranty, if any hereunder.
    4. Should CUSTOMER acquire PRODUCT(s) from LOOPHOLD for the purpose of selling those PRODUCT(s), whether CUSTOMER is permitted to do so or not (and nothing herein contained shall be deemed to allow CUSTOMER to on-sell PRODUCT(s) acquired from LOOPHOLD whilst ownership vests in LOOPHOLD), shall not advertise or issue or in any other way give or make any warranties, guarantees or representations as to the PRODUCT(s) in any form whatsoever or offer to do so, which are not approved by LOOPHOLD.
    5. The above warranties are subject to the following conditions:
      1. LOOPHOLD shall be under no liability to CUSTOMER unless the amount due to LOOPHOLD in respect of the PRODUCT(s) concerned is unpaid after the due date and this is not remedied within 7 (seven) days of written notice;
      2. LOOPHOLD shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, gross negligence, abnormal working conditions, failure to follow LOOPHOLD’s instructions (in writing), improper use outside LOOPHOLD’s specifications, damage to the PRODUCT(s) caused by improper maintenance, service or repair by untrained personnel or technicians, and unauthorised alterations or modifications of the PRODUCT(s);
      3. LOOPHOLD shall be under no liability in respect of parts, materials or equipment which are accepted in the industry to have a limited life expectancy or parts, materials or equipment, which need to be replaced at specified and published service intervals (“consumable parts”);
      4. LOOPHOLD shall be under no liability in the event that spare parts and consumable parts other than those recommended for use by  LOOPHOLD are fitted, attached or used on the PRODUCT(s)
    6. Except as otherwise expressly provided herein to the contrary, a Party shall not be liable to the other Party or any third party for consequential or incidental loss or damage which shall include but shall not be limited to loss of property or of profit, business, goodwill, revenue, data or anticipated savings) or for any costs, claims or demands of any nature whether asserted against LOOPHOLD or against CUSTOMER by any party
    7. In the event of the limitation of liability in 12.9 not being enforceable or applicable for whatever reason, the entire liability of each Party’s and the other Party’s exclusive remedy for damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the fees and charges paid by CUSTOMER under this Agreement for the period of 12 (twelve) months preceding the date on which the cause of action arose
  12. FEE AND TERMS ON RETURN PRODUCT(S)
    1. PRODUCT(s) will only be accepted for credit upon presentation of an authorised Return for Credit (RFC) application form. LOOPHOLD is not obliged to accept the return of any non-defective PRODUCT(s) and this clause shall not be used to imply that LOOPHOLD shall be obliged to accept the return of any non-defective PRODUCT(s).
    2. CUSTOMER must return the PRODUCT(s) to LOOPHOLD at CUSTOMER’s expense.
    3. No items will be accepted back without a copy of the original invoice, or if the item is not in its original packaging, (or in the case of a defective product in suitable packaging).
    4. No non-defective PRODUCT(s) will be accepted for credit after 10 (ten) days from date of invoice.
    5. No non-defective consumables will be accepted for credit under any circumstances.
  13. AVAILABILITY OF IMPORT PERMITS
    1. LOOPHOLD’s obligations hereunder shall be subject, in those cases where the PRODUCT(s) or part thereof are to be imported, to the availability of an import permit to LOOPHOLD.
  14. OWNERSHIP
    1. Ownership of the PRODUCT(s) shall not pass to CUSTOMER until the purchase price (including interest if any) in respect of the PRODUCT(s) in question has been paid. The provisions hereof shall apply notwithstanding the installation of such PRODUCT(s) in CUSTOMER’s premises or the accession thereof to any of CUSTOMER’s PRODUCT(s) or that the PRODUCT(s) may be incorporated into or form part of other PRODUCT(s) or change their essential character. All PRODUCT(s), whether fixed to immovable property or not shall be deemed to remain movable property and be deemed to be severable without injury to either property.
    2. LOOPHOLD reserves the right to inform the owner / landlord of the premises in which the PRODUCT(s) are or at any time may be, of the provisions of this clause. CUSTOMER shall be obliged to advise LOOPHOLD on LOOPHOLDS request of the name and address of the landlord of any such premises.
  15. SUBSTITUTE PRODUCT(S) OR PARTS
    1. LOOPHOLD shall be entitled to substitute for any PRODUCT(s) specified in this agreement such other PRODUCT(s), which the Parties have agreed in writing is a suitable substitute therefore.
    2. LOOPHOLD reserves the right to alter specifications, subject to having notified CUSTOMER in advance, as conditions warrant. Should conditions render any materials or PRODUCT(s) supplied to CUSTOMER become unavailable, , the Parties shall agree to substitution materials or PRODUCT(s), subject to same being suitable for the performance of LOOPHOLD’s obligations to CUSTOMER, alternatively the Customer may cancel any applicable order without penalty.
  16. BREACH
    1. If any party breaches any material provision or term of this Agreement (other than those provisions which contain their own remedies or limit the remedies in the event of a breach thereof) (“defaulting party”) and fails to remedy such breach within 10 (ten) Business Days from date of receipt of written notice from the other party (“the aggrieved party”) requiring the defaulting party to remedy the breach and warning that if the breach is not remedied, the aggrieved party may exercise its rights in terms of this clause, or if it is not reasonably possible to remedy the breach within 10 (ten) Business Days, within such further period as may be reasonable in the circumstances, then the aggrieved party shall be entitled without notice, in addition to any other remedy available to it at law or under this Agreement, to cancel this Agreement or to claim specific performance of any obligation, without prejudice to the aggrieved party’s right to claim damages.
    2. Notwithstanding the provisions of clause 16.1 above, the defaulting party shall be deemed to be in material breach of the terms of this Agreement if the following occurs:
      1. the defaulting party is in material breach of any of its obligations in terms of the Agreement and such breach is not capable of remedy and cannot be adequately compensated by the payment of damages; or
      2. the defaulting party commits any act of insolvency or endeavours to compromise generally with its creditors or does or causes to be done anything which may prejudice the aggrieved party’s rights hereunder or at all; or:
      3. the defaulting party fails to take steps within a period of 7 (seven) days from date of the defaulting party becoming aware of a judgment against the defaulting party, and thereafter fails to resolve the judgment within a reasonable period from date of taking steps to resolve the judgment; or
      4. the defaulting party is provisionally or final liquidated ,
      5. the defaulting party suffers execution against any of its assets that has the effect that the defaulting party is unable perform in terms of this Agreement; or
      6. the defaulting party disposes and / or cedes all or a portion of its assets or business that has the effect that such Party is unable to perform in terms of Agreement, or ceases to conduct its business, save to the extent that such disposal or cession relates to a solvent and genuine restructuring of either Party or any group of companies of which it is part and/or its Affiliates
    3. Neither Party shall not be obliged to comply with its obligations hereunder in any respect whatsoever for so long as the defaulting party remains in default or fails to comply with any other obligations of the defaulting party whether arising out of this contract or otherwise
    4. Any termination of this Agreement shall be without prejudice to any other rights or remedies that the Parties may be entitled to under this Agreement or at law, and shall not affect any accrued rights or liabilities of the Parties nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
  17. DOCUMENTATION
    1. All specifications, descriptive matter, drawings and other documents, created by LOOPHOLD and provided to the CUSTOMER are approximate only and do not form part of the contract and may not be relied upon, unless LOOPHOLD has confirmed in writing the accuracy of such descriptive matters, specifications, drawings and other documents in which case these shall be binding on LOOPHOLD. For the sake of clarity this does not apply product related literature and specifications which shall be accurate and may be relied on by the CUSTOMER.
  18. INSURANCE
    1. If LOOPHOLD is requested or elects to arrange delivery of the products to the CUSTOMER then transit insurance will applied to the shipment. By default all domestic shipping and insurance costs are for LOOPHOLDS   account, except where this has been agreed in the order to be for the CUSTOMER’s account. International shipping and insurance costs (where applicable) shall be negotiated between the parties and reflected in the order.
  19. DOMICILIUM AND NOTICES
    1. The Parties chose for purposes of giving of any written notice in terms of this Agreement and the serving of any process, CUSTOMER it’s the respective domicilium citandi et executandi (“domicilium”), the physical addresses appearing on the first page of the Customer Application . LOOPHOLD chooses its domicilium as detailed on the latest LOOPHOLD letterhead, or invoices that is in the possession of the Customer.
    2. Either party shall be entitled from time to time to vary its domicilium to any other physical address within the Republic of South Africa, which is not a post office box or poste restante. The Party seeking to vary its domicilium shall be obliged to give notice to the other within 10 (ten) days of the said change.
    3. Any written notice required and / or permitted to be given by either Party in terms of this Agreement shall be, valid and effective only if in writing, and deemed to have been duly given:
      1. on delivery, if delivered by hand during normal working hours (08H00 – 17H00) to either of the respective Party’s physical address above;
      2. in the absence of proof to the contrary, within one day of transmission where it is transmitted during normal business hours of the receiving instrument and within  the following business day where it is transmitted outside of those business, and this will apply mutatis mutandis to notices sent by way of e-mail to either Party’s nominated e-mail addresses, as recorded in the Customer Application; and
      3. unless proven otherwise, it is proven that a Party actually received the written notice, and/or came to a Party’s attention
  20. COSTS
    1. Each Party shall bear and pay its own costs of negotiating, drafting, preparing, finalisation and implementation of this Agreement. Should either Party successfully enforce or defend a claim in terms of this Agreement against the other Party, the unsuccessful Party shall be liable for all legal costs incurred by the successful Party as finally awarded by a court of competent jurisdiction
  21. FURNISHING OF INFORMATION BY CUSTOMER
    1. CUSTOMER shall forthwith after the conclusion of this Agreement, furnish LOOPHOLD with all information reasonably required by LOOPHOLD to enable it to comply with its obligations.
  22. LAW & JURISDICTION
    1. This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.
    2. CUSTOMER shall not, at any time, use the PRODUCT(s) and / or Services in contravention of any South African law.
    3. If relevant, CUSTOMER shall comply with the requirements of the Export and Control Regulations issued by the U.S. Department of Commerce.
  23. INTELLECTUAL PROPERTY
    1. This Agreement will not be interpreted or construed as granting, assigning or otherwise transferring to either party any license, right, title or interest in, to or under any patent, copyright, trademark, trade secret or other proprietary right owned, licensed or otherwise controlled by the other party.
    2. Neither party will remove, obscure or alter any notice of patent, copyright, trademark, trade secret or other proprietary right from any document, software or other tangible item containing any of the aforesaid without the other party’s prior written authorisation.
    3. All proprietary software, tools and other materials and ideas of a party used in connection with this Agreement will be and remain the exclusive property of that party and, except for the right to use such property as provided in this Agreement, the other party will obtain no rights in such property.
    4. Unless otherwise agreed by LOOPHOLD in writing, all intellectual property rights that exist or may exist in any Services shall vest solely in LOOPHOLD on creation of the rights.
    5. CUSTOMER acknowledges all copyright vests in LOOPHOLD and its suppliers relating to the PRODUCT(s) and/or Services and shall not duplicate copyrighted material.
    6. Each party hereto undertakes to immediately notify the other should it become aware of any unauthorised use or infringement of any of the other party’s intellectual property rights.
  24. LIMITATION OF LIABILITY
    1. Subject to clause 25.2 hereunder, neither Party shall be liable to the other Party for consequential, indirect, incidental or special damages, whether foreseeable or unforeseeable, including claims for loss of goodwill, loss of profit and loss of business.
    2. Notwithstanding anything to the contrary set forth in clause 25.1 above or this Agreement in general, the Parties shall be liable for losses which constitute consequential, indirect or incidental damages, which arise out of a Party’s wilful misconduct or gross negligence.
  25. CONFIDENTIAL INFORMATION
    1. For the purpose of this Agreement, Confidential Information shall not include:
      1. is previously known to the receiving party; or
      2. is lawfully in the public domain at the time of disclosure to the receiving party by publication or otherwise; or
      3. subsequently becomes available to the receiving party through a source which is lawfully entitled, without any restriction on disclosure to disclose such information.
      4. is developed independently of the Disclosing Party and/or the Confidential Information, by the Receiving Party in circumstances that do not amount to a breach of the provisions of this Agreement:
      5. is disclosed by the Receiving Party to satisfy an order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time; provided that in these circumstances, the Receiving Party shall (to the extent legally permissible) advise the Disclosing Party of such requirement to disclose, to enable the Disclosing Party to take whatever steps it deems necessary to protect its interests in this regard. In addition the Receiving Party will disclose only that portion of the Confidential Information which it is legally required to disclose and the Receiving Party will use its reasonable endeavors to protect the confidentiality of such information to the greatest extent possible in the circumstances;
      6. is disclosed to a third party pursuant to the prior written authorization of the Disclosing Party;
    2. The receiving Party hereby undertakes to the disclosing Party that it shall:
      1. Except as is necessary to enforce its rights or perform its obligations in terms of this Agreement, keep confidential the existence and terms and conditions of this Agreement in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information;
      2. keep confidential the Confidential Information and not disclose any of the same or any part thereof to any third party (other than its professional advisors, auditors and bankers) without the prior written permission of the disclosing party;
      3. not use the Confidential Information or any part thereof except for the performance of its obligations under this Agreement;
      4. without prejudice to the obligations contained herein, ensure that its employees, agents or subcontractors are under the same obligations of confidence as set out herein prior to the receipt of such Confidential Information; and
      5. upon the termination of this Agreement for whatever reason, return to the disclosing party (and procure the return from any employees, agents or subcontractors of) all Confidential Information in whatever format (including all copies) belonging to the disclosing party, which is capable of being so returned.
    3. The obligations in this clause shall survive termination of this Agreement for a further 5 (five) years.
    4. Without prejudice to the other rights of the Party owning the Confidential Information (“Owning Party”), in the event of any actual or suspected unauthorised disclosure or use of the Confidential Information which is, or is reasonably likely to constitute, a breach of any provision of this Agreement, the other Party shall:
      1. immediately notify the Owning Party in writing and take such steps as the Owning Party may reasonably require and at the Owning Party’s cost in order to remedy or mitigate the effects of such actual or threatened breach; and
      2. use all reasonable commercial endeavours and at the Owning Party’s cost to assist the Owning Party in recovering and preventing the use, dissemination, sale or other disposal of such Confidential Information.
  26. NON-SOLICITATION
    1. For the purpose of this clause “staff member” shall mean permanent employees,  officers and/or contractors of either Party at the time of conclusion of this Agreement.
    2. Neither Party (nor its employees or agents) shall at any stage after the conclusion of this Agreement, and for a period of 12 (twelve) months after this Agreement has been terminated, solicit for employment directly or indirectly any staff member who is or was employed by the other withinthree months prior to conclusion of this Agreement and has been directly involved in the execution of this Agreement.
    3. The restraint referred to in clause 24.2 above shall not be applicable in the event where the prior written approval to make such an offer has been obtained from the Party who is or has been the employer of such staff member.
    4. Notwithstanding the provisions of clauses 27.1 and 27.3 above, should a staff member of either Party accept any offer of permanent employment or engagement with  the other Party (or a party to whom a Party has introduced the staff member) within 12 (twelve) months of termination of the staff member’s last assignment with  the other Party, or within 12 (twelve) months of either Party introducing the staff member to the  other Party, whichever is the latest, then the other Party agrees to notify  that Party of such an appointment and to pay  the other Party a reasonable fee as compensation agreed by both parties.
  27. FORCE MAJEURE
    1. Neither Party (“affected party”) shall be liable for failure to perform any of its obligations under or arising out of this Agreement if such failure results from any act of God including fire, storm, earthquake, flood, or explosion riot, strikes, lock out, sit-in or imminence or the existence of any state of emergency, war, civil commotion, or industrial or trade dispute, adverse weather or disease, or act or intervention of a competent authority, including a change in any applicable laws, or failure in public supply of electrical power or public telecommunications and/or any other public supplied utility services, or any event that is beyond its reasonable control and which could not reasonably be planned for or avoided, and which renders it impossible or impracticable for such Party to perform its obligations under this Agreement provided that any of the said events does not result from an intentional act or omission of the affected party (each of these events, acts or interventions shall constitute a “Force Majeure Event”).
    2. The affected party will:
      1. promptly notify the other party in writing of the Force Majeure Event, including the cause and likely duration of any consequential delay or non-performance of the affected party’s obligations; and
      2. promptly use its Best Endeavours to mitigate the effect of such Force Majeure Event on the other Party and the performance of the affected party’s obligations and resume full performance of the affected party’s obligations as soon as reasonably possible.
    3. If the affected party has complied with clause 29.2, and the Services or obligations to be provided by the affected party to the other party is not materially affected, those Services that are affected will be suspended for the period that the Force Majeure Event continues and the affected party will have an extension of time for the performance of its obligations equal to the period of the delay or the failure, but the affected party will continue to perform all other Services or obligations that are not prevented by the Force Majeure Event.
    4. If performance of a material part of the Services provided by the affected party to the other cannot be resumed within a period of 30 (thirty) days, after receipt of the notice in 30.2.1, the other Party may terminate this Agreement, without incurring any liability to the affected party.
    5. The Parties acknowledge that the services provided by the Licensor to the Licensee are critical to the continuity of the Licensee’s business, and accordingly will do everything necessary (notwithstanding the right to terminate) to ensure, notwithstanding a Force Majeure Event, that the Services provided to the Licensee are not interrupted.
  28. INDEMNITY
    1. CUSTOMER shall be solely responsible for, and shall indemnify and hold LOOPHOLD harmless from any claims, warranties or representations made by CUSTOMER or CUSTOMER’s employees or agents which differ from the warranty provided by the PRODUCT’s VENDOR in its “End User Agreement” (as included in the PRODUCT(s) manual), or any other warranty given by LOOPHOLD in writing.
  29. GENERAL & MISCELLANEOUS
    1. No agency, employment, partnership, joint venture, or other joint relationship is created hereby, it being understood that CUSTOMER and LOOPHOLD are independent contractors vis-à-vis one another and that neither has any authority to bind the other in any respect whatsoever. The failure or delay by a Party to exercise or enforce its rights, elections or remedies provided for in terms of this Agreement shall be construed as a waiver of such right, election or remedy, and such rights shall remain in existence and enforceable unless a Party expressly records such waiver in writing, or a Party is divested of such right, election or remedy by operation of the applicable law. The failure of any Party to enforce its rights, elections or remedies shall not preclude such Party from later enforcing or exercising any rights, elections or remedies that it may have under this Agreement
    2. Where agreement, approval, acceptance, consent or similar action by either party is required by any provision of this Agreement, such action will not be unreasonably delayed or withheld.
    3. Neither this Agreement nor any of the rights or obligations can be assigned or transferred without the prior written consent of both parties. However, both Parties have the right (i) to assign all of its rights and obligations in the case of a merger, consolidation, or sale of substantially all its assets or substantially all the assets of a particular business line which is included within the term of this Agreement and/or constitutes a genuine restructure of a group of companies and (ii) to assign the right to receive payment.
    4. Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration of this Agreement and continue in full force and effect, notwithstanding such termination or expiration of this Agreement.
    5. The parties undertake to observe the principles of good faith towards one another, in the performance of their obligations in terms of this agreement and in the preparation and finalisation of any further agreement.
    6. The parties agree to perform any further acts and to execute and deliver any further documents that may be necessary or appropriate to carry out the purposes and intentions of this agreement.
    7. LOOPHOLD retains the right to market, distribute, and support the PRODUCT(s) in the TERRITORY directly to or through any person or entity on any terms deemed desirable by LOOPHOLD in its sole discretion as authorised by the VENDOR(s).
    8. If a court of competent jurisdiction holds or finds any provision of this Agreement to be illegal, invalid, or unenforceable, the provision shall be automatically severed from this Agreement and treated as pro non scripto. Any such holding or finding shall not affect the legality or validity of the remaining provisions of this Agreement which shall continue in full force and effect. If a severed provision is deemed to be essential to this Agreement, The Parties agree to review the severed provision and agree to any valid, lawful and enforceable means reasonably available to achieve the same object as the severed provision, and to negotiate and agree to adopt such means by way of variation and/or amendment thereof,  in good faith, but failure to agree shall not be a ground for termination of this Agreement.
    9. Except as otherwise provided in this Agreement, no addition to, variation, novation and/or amendment or agreed cancellation of this Agreement will be of any force and effect unless reduced to writing and signed on behalf of the Parties by a duly authorised representative.
    10. The Parties consent in terms of Section 45 of Act 32 of 1944 to any Party taking legal proceedings for enforcing any of its rights under this Agreement in the Magistrate’s Court for any district having jurisdiction by virtue of section 28(1) of the aforesaid Act. The Parties nevertheless, are entitled to institute proceedings in any division of the High Court of South Africa, which has jurisdiction.
    11. This Agreement may be executed in any number of counterparts and by each Party in a separate counterpart, each of which when so executed shall be deemed to be an original, but all such counterparts shall constitute one and the same instrument.
    12. The Parties acknowledge that they have read and understood the contents of this Agreement and agree to be bound by the terms and conditions thereof. This Agreement and its Attachments constitute the entire agreement between the Parties, and supersedes and extinguishes all previous agreements, related to the subject matter hereof. Nothing in this clause or this Agreement shall limit or exclude any liability for fraud.

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