A. GENERAL TERMS AND CONDITIONS
3.4 As far as permissible in law, none of the Indemnified Parties will be liable for any Claims and whether or not caused by the negligence of the Indemnified Parties, which may be caused to or suffered or sustained by the Customer, its directors, officers or employees (collectively “Indemnifying Parties”) and/or the Indemnifying Parties contractors, agents, customers, invitees, licensees or any other third party, arising out of, incidental to or connected in any way with the Contract (or its cancellation), any Acceptance (or its cancellation), the supply of the Equipment, TES or Services or the rental of Equipment, unless such Claims are caused by the wilful conduct or gross negligence of Barzem.
3.5 Notwithstanding anything to the contrary contained elsewhere in the Contract,as far as permissible in law, Barzem shall not be liable to the Indemnifying Parties and/or the Indemnifying Parties contractors, agents, customers, invitees, licensees or any other third party in terms of, arising out of or in connection with the Contract(or its cancellation) and/or any work carried out in terms thereof or otherwise or any Acceptance (or its cancellation) for:
3.6 Notwithstanding anything to the contrary contained elsewhere in the Contract, as far as permissible in law,Barzem shall not be liable to the Indemnifying Parties and/or the Indemnifying Parties contractors, agents, customers, invitees, licensees or any other third party in terms of, arising out of or in connection with the Contract(or its cancellation) and/or any work carried out in terms thereof or otherwise or any Acceptance (or its cancellation) for:
3.7 The Customer hereby indemnifies the Indemnified Parties and undertakes to keep each of them indemnified and held harmless against any Claims which may be made against any of them arising out of or in connection with:
Limitation of Liability
3.8 Notwithstanding anything to the contrary contained elsewhere in the Contract, as far as permissible in law the total liability of the Indemnified Parties to the Indemnifying Parties under or in connection with all Contracts and/or any work carried out in terms thereof or otherwise, howsoever arising, including, but not limited to, any liability arising out of contract, delict, statutory duty or otherwise and whether arising by way of penalties, liquidated damages, delay damages, performance liquidated damages, indemnity or otherwise, shall not exceed in aggregate the lesser of RTGS$ 50,000-00(fifty thousand dollars RTGS dollar) and:
Non-OEM attachments and Exclusions
To the extent permissible by the applicable laws, the Customer will protect, defend, indemnify and hold harmless the Indemnified Parties against any Claims, of any governmental authority or any third party as a result ofthe breach by the Customer of any sanctions laws, economic or trade restrictions or export controls regulations (collectively “Sanctions”), whatsoever applied and/or imposed by the European Union and/or the United Kingdom and/or the United States of America or any international governmental organization or relevant authority, as may be amended from time to time.
7. CUSTOMER’S FINANCIAL OBLIGATIONS
7.1 The Customer acknowledges that it understands its financial obligations in terms of the Contract and agrees to the breakdown of these financial obligations as set out in the quotation and confirmed in the Acceptance.
7.2 The Customer warrants that it has the power and capacity and has obtained all necessary authorisations and consents to enter into, and perform its obligations under, the Contract and such other agreements and arrangements referred to in the Contract, and that it enters into the Contract voluntarily.
If the Customer fails to perform any of its obligations under a Contract, Barzem may perform that obligation (but is not obliged to do so) and recover the cost of doing so from the Customer, who must pay that amount to Barzem on demand.
(f) repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify Barzem’s opinion that the Customer’s conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract.
The Customer is liable for all legal costs incurred by Barzem because of a breach of the Contract by the Customer, on an attorney and own client scale and on a full indemnity basis, including any tracing fees and collection commission.
off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property, and the Customer undertakes to provide such assistance as Barzem may require in connection with any such action.
17. USE OF CUSTOMER’S INFORMATION
17.1 The Customer warrants and guarantees that all information supplied to Barzem by the Customer in the Purchase Order and/or application for a Trading Account (if applicable) and in terms of the Contract is true and correct.
17.2 The Customer agrees to inform Barzem immediately should there be any changes of whatsoever nature in any of its information, including its physical address, previously supplied to Barzem.
17.3 In handling any personal information of the Customer, Barzem will comply with the relevant data protection laws applicable in the country where Barzem trades, is registered and/or incorporated (“Country”).
17.4 As and when necessary, the Customer undertakes to obtain the consent of all natural and/or juristic persons to whom the personal information relates and herewith consents to Barzem collecting, holding, using, disseminating, destroying, disclosing and processing such personal information supplied to Barzemas follows:
Department’, which shall be deemed to have been received on the date of delivery and if delivered on any other day, be deemed to have been received on the next business day thereafter, provided it was delivered to a responsible person during ordinary business hours who acknowledged receipt in writing;
If the Contract is between Barzem and two or more Customers; then the liability of those Customers under the Contract shall be joint and several.
|SPECIFIC TERMS APPLYING TO THE SALE OF EQUIPMENT
Subject to clause11, all risk of loss of, or damage to, or caused by, the Equipment purchased by the Customer shall pass to the Customer on Delivery or on expiry of the 5 (five) day period referred to in clause 11.3, whichever is earlier.
Despite delivery of any Equipment to the Customer, the Customer does not acquire ownership of, or any other right in and to the Equipment, until Barzem has received the full Price, together with any other amount (including Tax) which is payable to Barzem for, or in connection with, that Equipment.
Where Equipment is sold under warranty by a supplier for whom Barzem is a repair agent and Barzem repairs or replaces that Equipment, upon completion by Barzem of the repair or replacement, the Customer must, on request, sign written confirmation that Barzem has effected that repair or replacement so as to enable Barzem to recover payment for its work from the supplier.
|SPECIFIC TERMS APPLYING TO THE RENTAL OF EQUIPMENT
Each Hire Schedule shall commence on the date specified in that Hire Schedule. If no such date is specified, then the Hire Scheduleshall commence on the date on which the Equipment is made available to the Customer at Barzem’s premises as set out in the Hire Schedule (“Barzem’s Premises”) and shall endure for a minimum period specified in theHire Schedule (“Rental Period”).
The Customer shall:
In the event that the Equipment breaks down due to any defective workmanship, Barzem’s liability shall, subject to clause 3, be limited to the cost of repair, including parts and labour, to return the Equipment to full working order. Barzem shall not be liable for the costs of the Customer’s labour or standby time in connection to any breakdown, nor any consequential losses or costs related to the delay of the Customer projects.
Notwithstanding anything to the contrary contained in the Contract, the Equipment shall at all times remain the property of Barzem, and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these Conditions).
in this respect shall be borne by the Customer. The Customer shall not withhold any Rental during any period whilst the Equipment is in a defective or damaged state and shall have no claim against Barzem in the event of the costs of the repairs, restoration or replacement not being recovered in full or at all from the insurer.
47. BARZEM’S RIGHTS ON TERMINATION
Upon cancellation of this Contract for any reason:
47.1 Barzem’s consent to the Customer’s possession of the Equipment shall terminate and Barzem may, by its authorised representatives, without notice and at the Customer’ expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located.
47.2 all Hire Schedules with the Customer shall automatically terminate; and
47.3 without prejudice to any other rights or remedies of Barzem, the Customer shall pay to Barzem on demand:
|SPECIFIC TERMS APPLYING TO SERVICES
The Customer requests Services and Barzem agrees to render the Services on the terms and conditions specified in the Contract.
Where any components, parts and/or materials (“Material”) required to perform the Services have been ordered by Barzem in accordance with the Acceptance for the purposes of providing the Services, then should the Material no longer be required for the Services as a result of the termination of the Contract or change in the Customer’s requirements, and Barzem has no other reasonable use for such Material, Barzem shall provide such Material to the Customer, and the Customer shall reimburse Barzem for the cost thereof.
“TES” refers to solutions, including consultative services, for Equipment and/or Goods management, productivity and/or safety and/or sustainability improvement, enabled by:
The Customer requests the TES and Barzem agrees to provide the TES on the terms and conditions specified in the Contract.
Notwithstanding delivery and installation of any Telemetry Device, the Customer does not acquire ownership of, or any other right in and to the Telemetry Device, until Barzem has received the full Price for the sale and installation of the Telemetry Device, together with any other amount (including Tax) which is payable to Barzem for, or in connection with, that Equipment.
All risk of loss of, damage to, or caused by, the Telemetry Device, including without limitation the SIM Card shall pass to the Customer on delivery and installation on the Goods and/or Equipment.
63. THE CUSTOMER’S OBLIGATIONS
63.1 The Customer shall maintain and keep in good working order all hardware/software and other devices required by the Customer to ensure the uninterrupted transmission of Telematics Information.
63.2 The Customer shall notify Barzem of its intention to sell the Equipment and/or Goods on which the Telemetry Device is installed at least 4 weeks before the sale is effected and request Barzem to deactivate the Telemetry Device. In the event that the Customer fails to notify Barzem of the sale of the Equipment and/or Goods, the Customer shall remain liable for the Fee arising from providing the TES even though the Equipment and/or Goods are no longer in the Customers’ possession or ownership.
64. BARZEM’S SERVICE OBLIGATIONS
64.1 The Telemetry Device provides the Customer and Barzem with remote access to the Telematics Information otherwise available only on the Equipment and/or Goods. Barzem relies upon the accuracy of the Telematics’ Information delivered in order to provide the TES and accepts no liability whatsoever and howsoever arising for any incorrect, lost, corrupted or undelivered data or Telematics Information.
64.2 TES Services which rely on Telematics Information can only be provided while the Equipment and/or Goods are located where there is good, clear and adequate GPS, GSM and UMTS (2G and 3G) network coverage or radio frequency network coverage, depending upon which kind of network coverage the Telemetry Device requires to operate.
64.3 Telemetry Devices are not provided with an intention to locate lost or stolen Equipment and/or Goods and Barzem accepts no obligations or liability arising as a result of not being able to locate lost and/or stolen Equipment and/or Goods.
64.4 Notwithstanding anything to the contrary contained herein, Barzem may, without incurring any liability towards the Customer, at any time and from time to time, interrupt or suspend the TES in whole or in part if:
I warrant that I have the necessary authority to accept these Conditions as the Customer/on behalf of the Customer and hereby indemnify Barzem against any liability, claim, damage or loss that might arise as a result of any alleged or actual lack of authority.
I acknowledge that I have been free to secure independent legal advice as to the nature and effect of all the provisions of these Conditions, including the reasonableness and fairness of these Conditions, and that I have either taken such independent legal advice or, having failed to take such advice, have dispensed with the necessity of doing so.
I accept the above terms and conditions.
I accept the address, as reference in clause 21.2(a)(i), as the address where Court process and notices may be served or given (domiciliumcitandi et executandi).