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Terms and Conditions of Sale

Terms and Conditions of Sale

1 Definitions and Interpretation

1.1 In these terms and conditions the following words have the meanings given:-

“Business Day” means any day other than a Saturday, Sunday or a bank or public holiday in South Africa

“Contract” means a contract for the purchase by the Customer of Products or Services from Zaivan incorporating these terms and conditions and arising from the acceptance by Zaivan of an Order;

“Customer” means the person, organization or company ordering Products or Services;

“Delivery” means when possession or control of the Products is offered or transferred to the Customer or its agent or upon delivery by Zaivan or its agent to an address given by the Customer;

“Group” means in relation to any that company and every other company which for the time being is a subsidiary or holding company (as defined in the Companies Act 2008) of that company or subsidiary of such holding company;

“Hardware” means any computer hardware, networking equipment, or peripheral products supplied by Zaivan to the Customer but not including any consumables;

“Intellectual Property Rights” means copyright, patent, trademark, service marks, registered designs, sui generis rights, know-how, confidential information, trade or business names or other similar rights together with applications for any of the foregoing;

“Licence Agreement” means any license agreement relating to the use of the Software; “Order” means any written order for Products, or Products and Services, received by Zaivan from the Customer;

“Product” means the Hardware and/or Software ordered by the Customer from Zaivan from time to time;

“Zaivan” means Zaivan Technologies or any of its subsidiaries or any such other company as Zaivan Technologies may appoint as sub-contractor to provide the Services to the Customer;

“Services” means any configuration or installation services provided by Zaivan in conjunction with the supply of Products;

“Software” means any computer software supplied by Zaivan, whether embodied in ROM, RAM, and firmware or on disk, tape or other media.

1.2 All other words and expressions are to be given their normal English meaning taken in the context of the Contract. Any dispute as to the meaning of a word is to be settled by reference to the Oxford English Dictionary.

1.3 Any reference to a clause shall mean a clause of these terms and conditions unless otherwise stated.

1.4 The use of headings in these terms and conditions shall be for convenience only and shall not affect the interpretation of these terms and conditions.

1.5 Reference to any statute or statutory provision or any other regulation includes any provision, which subsequently supersedes it or re-enacts it (whether with or without modification).

2 Contract Formation

2.1 Zaivan Technologies is a business in the information technology industry that supplies software and hardware to creative users.

2.2 All Orders submitted by the Customer to Zaivan and accepted by Zaivan shall be subject to these following terms and conditions, which shall form part of and govern any Contract.

2.3 Acceptance by the Customer of any estimate or quotation for Products and/or Services issued by Zaivan shall be deemed to be acceptance of these terms and conditions.

2.4 Any terms and conditions appearing in any Order or another document whatsoever issued by the Customer shall be void and of no effect and these terms and conditions shall override any previous agreements relating to the provision of Products or Services between the parties.

2.5 No waiver of or amendment to these terms and conditions shall be effective unless made in writing and signed by Zaivan.

2.6 The Contract contains the entire agreement of the parties in relation to the supply of Products or Services by Zaivan to the Customer and the Customer irrevocably waives any right it might have to claim for damages and/or to rescind a Contract because of any misrepresentation by Zaivan (unless such misrepresentation was made fraudulently) or any warranty not contained in the Contract.

2.7 This website is run by Zaivan (Pty) Ltd based in South Africa trading as Zaivan Technologies and with registration number 2016/045717/07.

3 Price

3.1 All prices for Products or Services stated in any quote, estimate or acceptance of Order are those current at the time of the Customer’s inquiry. The price payable by the Customer for Products or Services will be the price in force at the time of delivery of the Products or supply of Services to the Customer and Zaivan reserves the right to pass on to the Customer any increase in the price of Products or Services occurring after the time of any quotation, estimate or acceptance of an Order by Zaivan.

3.2 All prices for the Products are exclusive of Value Added Tax or other applicable sales tax whether in substitution or in addition which shall be paid by the Customer at the rate from time to time in force.

3.3 Unless otherwise agreed in writing by Zaivan, all prices for the Products are exclusive of Zaivan’s charges for delivery, handling or Services which will be added to Zaivan’s invoice for the Products.

3.4 All prices in South Africa Rands due to the fluctuation of the rate of exchange all quotes have to be updated before sending through purchase orders.

3.5 We may update our pricing on our website regularly depending on the exchange rate as we purchase some of our products in USD and EURO’s, especially on software.

4  Payment

4.1 (i) We accept the following credit cards: MasterCard, Visa

(ii)We accept an electronic transfer or EFT and PayPal.

4.2 Card acquiring and security

Card transactions will be acquired for Zaivan via PayGate (Pty) Ltd who are the approved payment gateway for all South African Acquiring Banks. PayGate uses the strictest form of encryption, namely Secure Socket Layer 3 (SSL3) and no Card details are stored on the website. Users may go to www.paygate.co.za to view their security certificate and security policy.

4.3 Customer details separate from card details.

Customer details will be stored by Zaivan separately from card details which are entered by the client on PayGate’s secure site. For more detail on PayGate refer to www.paygate.co.za.

4.4 Merchant Outlet country and transaction currency.

The merchant outlet country at the time of presenting payment options to the cardholder is South Africa. Transaction currency is South African Rand (ZAR).

4.5 Responsibility.

Zaivan takes responsibility for all aspects relating to the transaction including sale of goods and services sold on this website, customer service and support, dispute resolution and delivery of goods.

4.6 Country of domicile.

This website is governed by the laws of South Africa and Zaivan chooses as its domicilium citandi et executandi for all purposes under this agreement, whether in respect of court process, notice, or other documents or communication of whatsoever nature, Southdowns Ridge Office Park, John Vorster Drive, Centurion, Pretoria, O157.

5 Title

5.1 Title to and property in any Products will remain vested in Zaivan until payment in full of the purchase price (together with any interest and VAT thereon) and in cleared funds has been received by Zaivan in respect of:-

(i) those Products; and

(ii) all other amounts payable by the Customer to Zaivan (whether or not due for payment).

5.2 Title to and property in Products will remain with Zaivan notwithstanding that the relevant Products have been Delivered and/or incorporated in or affixed to other products including, for the avoidance of doubt, the storage of or incorporation of any Software in ROM, RAM or any other hardware, software or firmware or other media whatsoever.

5.3 Until such time as title to and property in any Products passes to the Customer, the Customer will store those Products on its premises in conditions that adequately protect them and separately from the Customer’s own goods or those of any other person and clearly marked as Zaivan’s property, and the Customer shall redeliver the Products to Zaivan on demand.

5.4 If the Customer fails to redeliver any Product on demand in accordance with clause 5.3, Zaivan shall be entitled with or without notice, without incurring any liability to the Customer, to enter the Customer’s premises for the purpose of taking possession of the Product, and to take such steps as are necessary to remove the Product including the right to dismantle any product into which the Product has been incorporated and the right to detach the Product from any other goods to which the Product has been attached.

5.5 The Customer shall fully indemnify Zaivan in respect of all Zaivan’s costs (including legal costs) in connection with enforcing the provisions of clause 5.4.

5.6 Until such time as, in accordance with the above provisions, either the Customer shall have ceased to have the right to retain possession of any Product or shall have acquired title to and property in the Product the Customer is hereby authorized by Zaivan to sell the same and to pass good title to its customers if they purchase the Product in good faith without notice of Zaivan’s rights.

5.7 Where a Product is sold or otherwise disposed of to a third party before title to any property in it has passed to the Customer, the sale will constitute a sale by the Customer of Zaivan’s property, and the Customer shall hold on trust for Zaivan such sum as represents, or is equivalent to, the price at which the Product concerned was invoiced by Zaivan to the Customer. Such proceeds shall be paid by the Customer into a separate bank account opened for the purpose and approved by Zaivan and shall ensure that in no circumstances are the proceeds mingled with other money or paid into any overdrawn bank account that are at all times identified as Zaivan’s money.

5.8 If the Customer has not received the proceeds of any such sale or disposition, it will, if required by Zaivan, assign to Zaivan forthwith all rights against the person, firm or company by whom the proceeds are owed.

6 Performance of the Contract

6.1 Any dates quoted or mentioned by Zaivan for Delivery of the Products or the provision of the Services whether verbally or otherwise are estimates only and whilst Zaivan will use all reasonable endeavours to meet such dates it cannot guarantee to do so. Time will not be of the essence in the Delivery of the Products or the performance of the Services. Zaivan shall have no liability to the Customer if it fails to meet any requested, quoted, estimated or agreed date for Delivery of Products or the provision of the Services. Zaivan will be entitled to a reasonable extension of time in which to effect Delivery of the Products or perform the Services.

6.2 Zaivan shall be entitled to make a partial Delivery of the Products or Delivery by instalments.

6.3 Notwithstanding clause 5 above, the risk in any Product shall pass to the Customer on Delivery.

6.4 All illustrations or specifications contained in any catalogues or publicity material produced by Zaivan are approximate only and are only intended to convey a general idea of the Products or Services and any typographical, clerical or other error or omission in any literature/document or information issued by Zaivan will be correctable without notice or any liability to the Customer.

7 Inspection

7.1 Where Products are delivered to the Customer, the Customer must inspect the Products immediately upon their arrival to check whether:-

(a) the Products have been damaged in transit, and

(b) the Products are those, and in the quantity, specified in the Order.

7.2 Any discrepancy between the Products delivered and those specified in the Order and/or any damage to the Products in transit must be notified to Zaivan in writing within two Business Days of receipt by the Customer of the Products.

7.3 In the case of non-delivery of Products, the Customer must notify Zaivan in writing within two Business Days of receipt by the Customer of Zaivan’s delivery note or invoice (whichever is earlier).

7.4 No claim for damage in transit, non-compliance with the Order or non-delivery will be considered by Zaivan unless the Customer complies with the provisions of this clause.

7.5 If the Customer requests Zaivan to provide duplicate copies of any signed delivery notes, a charge of R220.00 (Two hundred and twenty Rands) per copy shall be made by Zaivan and invoiced accordingly.

8 Acceptance

8.1 The Customer will be deemed to have accepted Products or Services as being in accordance with the Contract unless the Customer notifies Zaivan in writing of any defect in materials or workmanship or failure to comply with specifications or other data supplied by the Customer or any other failure of the Products or Services which would be apparent on reasonable inspection of the Products within five Business Days from the date of delivery of the Products or completion of the Services (whichever is later).

8.2 In the event of a valid claim by the Customer under Clause 8.1, Zaivan shall upon return of the defective Product at its option replace the relevant Product or arrange for repair of the Product within a reasonable time at no cost to the Customer but otherwise shall have no liability for such non-compliant.

9 Customer Obligations

9.1 The Customer shall be entirely responsible for:-

(a) providing a suitable environment for the installation of the Products; and

(b) unless otherwise agreed by Zaivan the installation of the Products.

(c) using the Products in accordance with the manufacturer’s instructions and recommendations (including those contained in any Licence Agreement).

(d) carrying out cleaning operations as recommended by the Product manufacturer or Zaivan.

9.2 The Customer shall provide such access to its premises, personnel and facilities as Zaivan shall reasonably require in order to provide the Services.

9.3 The Customer will provide Zaivan with such information as it may reasonably need concerning the Customer’s operations and answers to queries, decisions, and approvals which may be reasonably necessary for Zaivan to undertake any Services within five (5) working days. The Customer is responsible for ensuring that such information and answers are accurate and complete. Zaivan will, to the extent reasonably practicable, give the Customer reasonable prior notice of any information or answers it requires in accordance with this clause 9 and will notify the Customer promptly in writing if it considers the Customer to have failed to provide information or answers in accordance with this clause 9 or if it has reason to suspect that any information is inaccurate or incomplete.

9.4 In the event the Services includes installation the Customer will provide, free of charge, the following facilities to authorised personnel of Zaivan and its Sub-Contractors throughout the Customer’s normal business hours and at such other times as the Customer authorizes after reasonable prior notice from Zaivan (such authorization not to be reasonably withheld or delayed):

9.4.1 access to and use of the Customer equipment and unloading equipment, access to the Customer’s employees, the products and the site;

9.4.2 all electric power, lighting, heating and air conditioning reasonably needed by the Zaivan to perform the Services

9.4.3 office space suitable for this purpose and the provision of normal office services including first aid, photocopying, telephone and facsimile facilities (but excluding any secretarial support, typing and photocopying facilities needed to produce any documentation for which Zaivan is responsible), and such facilities may be used only for the purposes of providing the Services

9.4.4 competent operators for the Products and any relevant Customer equipment.

9.4.5 The Customer shall also be responsible for ensuring that the Customer’s existing hardware and software are properly installed and is sufficient and suitable for its purpose and that any adjustments which may be required are carried out expeditiously. Zaivan will be responsible for connecting the Products to Customer’s existing hardware with the co-operation of the Customer.

10 Cancellation

10.1 Except as provided herein, the Customer shall not be entitled to return any Product or cancel any Orders which Zaivan has accepted without Zaivan’s prior written agreement and any such cancellation or return shall be subject to:-

(a) the Customer indemnifying Zaivan in full for any costs, charge, expenses, damages or loss (including loss of profit) incurred or suffered by Zaivan in respect of such return or cancellation; and

(b) the Product returned being accompanied by a reference to an RMA number issued by Zaivan and being in stock condition, complete with all packing and appropriately boxed.

10.2 The Customer shall be responsible for the cost of carriage and insurance in respect of all Products returned to Zaivan, which Products shall also be at the Customer’s risk until actual receipt by Zaivan.

11 Product Modifications

11.1 Zaivan may modify the specification of any Product to be supplied by Zaivan and/or substitute substantially conforming components provided the modifications and/or substitutions do not adversely affect the performance of the Product. Zaivan will wherever practicable advise the Customer of all such modifications or substitutions in advance of delivering the Product to the Customer.

12 Warranties

12.1 Zaivan, to the extent that it is permitted to do so, hereby assigns the benefit of any guarantee or warranty covering any defects in Products received by Zaivan under an agreement with the manufacturer or supplier of the relevant Product.

12.2 The warranty service (if any) will be that provided by the manufacturer or supplier (as the case may be) and any validation procedures relating to that warranty service are the responsibility of the Customer.

12.3 Zaivan may in its discretion offer support or maintenance services with respect to Products and such services shall be governed by separate terms agreed between Zaivan and the Customer.

12.4 The warranty of the manufacturer or supplier is in lieu of all other terms or conditions whether express or implied concerning the quality or fitness for purpose of Products and all such other terms and conditions are hereby excluded.

12.5 Zaivan warrants that the Services will be carried out with reasonable care and skill and by suitably trained and qualified persons.

13 Date Compliance

13.1 Zaivan undertake that it will use all reasonable endeavors to obtain from the original manufacturer of the Products a warranty that the Products are Date Compliant, and to the extent that it is able, Zaivan will transfer to the Customer the benefits of any such warranty. For the purposes of this clause, “Date Compliant” means that neither the performance nor the functionality of the Products shall in any way be affected by any date and that the Products will be capable of correctly processing all dates.

13.2 Zaivan will in no circumstances be liable to the Customer for any losses, claims or damages whatever nature that the Customer may suffer as a result of the Products not being Date Compliant.

13.3 All other express or implied warranties or conditions relating to quality or fitness for the purpose (whether implied by statute or otherwise) are hereby excluded in so far as they might apply in the event of the Products, not Date Compliant. A request Zaivan to agree a higher limit of liability provided insurance cover can be obtained therefor and the Customer will pay any additional premiums incurred by Zaivan as a result.

14 Confidentiality

14.1 Each party shall treat as confidential all information obtained from the other which is specifically designated as confidential or propriety and shall not divulge such information to any person (except to such party’s own employees and the only to those employees who need to know the same) without the other party’s prior written consent.

14.2 This clause shall not extend to any information which was rightfully in the possession of a party prior to the commencement of the negotiations leading to a Contract, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of the clause) or which is trivial or obvious.

14.3 Each party shall ensure that its employees are aware of and comply with the provisions of this clause.

14.4  Zaivan shall take all reasonable steps to protect the personal information of users. For the purpose of this clause, “Personal Information” shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (PAIA). The PAIA may be downloaded from http://www.polity.org.za/attachment.php?aa_id=3569.

14.5 Except as otherwise specifically provided in these terms and conditions, Zaivan hereby excludes to the fullest extent permissible in law, all conditions, warranties, terms, and stipulations, express (other than those set out in these terms and conditions) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer

15 Export Control

15.1 The Customer acknowledges that certain Products may be subject to export controls imposed by South Africa or other Governments and undertakes to apply for and obtain any necessary licenses or other consents that may be necessary to export or take any product (or any part thereof) out of South Africa.

16 Law

16.1 All Contracts shall be governed by and constructed in accordance with, English law and the parties submit to the exclusive jurisdiction of the English courts.

17 Zaivan Contact Details

17.1 Company Physical Address: Southdowns Ridge Office Park, John Vorster Drive, Centurion, Pretoria, O157 Email: info@zaivan.co.za  Telephone: 012 880 3108