Reseller Application T’s & C’s

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TERMS AND CONDITIONS

 

 

  1. INTERPRETATION

 

  • This Agreement, unless the context indicates a contrary intention, the following expressions shall bear the meanings assigned to them below and cognate expressions shall bear corresponding meanings –

 

  • Agreement” means this Reseller Agreement, inclusive of any annexures to this Agreement;

 

  • Commencement Date” means, the date of signature by both Parties;

 

  • Confidential Information” means any confidential information belonging to Rugged SA, including but not limited to the following:

 

  • Intellectual Property, financial and business information pertaining to Rugged SA;

 

  • information relating to existing and future strategic objectives and planning;

 

  • information relating to Rugged SA’s business activities, business relationships, customer names and contact details, supplier names and contact details, products and services;

 

  • training regimes and programmes, projects, tender applications, methodologies, training materials and resources;

 

  • price lists and pricing policies;

 

  • designs, technical, scientific, commercial, market information, know-how and trade secrets;

 

  • data concerning business relationships and processes;

 

  • information concerning Rugged SA’s systems, hardware and/or software, defects occurring in such systems, hardware and/or software, or the incidence of such faults or defects;

 

  • information concerned with discoveries, research, developments, methods, processes, procedures, improvements, “know – how” and compilations; and any;

 

  • market research, marketing techniques and plans conducted or drawn up by Rugged SA,

 

howsoever recorded, stored or manifested, whether in oral, written or any other form, which is unpublished, not available to the general public or trade, and which is maintained as confidential and proprietary information by Rugged SA for any reason, including, without limitation to, regulatory, business, competitive, contractual or customer related reasons, but excluding information which was in the public domain prior to the date of this Agreement or which becomes part of the public domain after the date of this Agreement, without any breach of this Agreement, or information which the Reseller can show was received by it from a third party without any breach of a confidentiality obligation owed by the Reseller to Rugged SA;

 

  • Devices” means the products listed in Annexure “C”, which products Rugged SA will sell to the Reseller for on-sale to the End Users, in accordance with this Agreement;

 

  • Domain Names” means the domain names related to Devices owned by Rugged SA now or in the future;

 

  • Due Date” means the date specified in the relevant invoice, or if no such date is specified, then payment of the Devices shall be immediately due upon receipt of Rugged SA’s invoice and prior to the delivery of the Devices to the Reseller;

 

  • Effective Date” means the date of signature of this Agreement by the Party signing last in time;

 

  • End User” means those individuals and/or entities who purchase the Devices from the Reseller, whether such Devices are supplied alone or as part of any other product or service;

 

  • Intellectual Property” means any know-how (not in the public domain); invention (whether or not patented); design, specifications, methodologies, Trade Mark, domain name or copyrighted material (whether or not registered), in the Devices including all products and services ancillary or related thereto as may exist at the Effective Date and as may be developed, created or adapted thereafter;

 

  • Laws” means all legislation, statutes, regulations, by-laws, directives, orders, notices, promulgations and the like which have the force of law in the Republic of South SA or which it would be an offence not to obey, and the common law, as amended, replaced, re-enacted, restated or re-interpreted from time to time of the Republic of South SA;

 

  • Losses” means  all  losses,  liabilities,  damages  and  claims,  and  all  related  costs  and  expenses;

 

  • Rugged SA” means Rugged SA (Pty) Ltd, a limited liability private company duly incorporated in the Republic of South Africa with registration number 2016/199100/07;

 

  • Purchase Order” is a commercial document and the first official offer issued by the buyer to the seller indicating types, quantities, and agreed prices for products or services;

 

  • Quotation” is a formal statement setting out the estimated cost or a particular job or service

 

  • Party/Parties” means the Parties to this Agreement, as the context may require;

 

  • Prices” means the prices charged for the Devices as set by Rugged SA from time to time;

 

  • Reseller” means the person or entity entering into this Agreement with Rugged SA and whose details are set out in the application form above;

 

  • Reseller Service/s” means a service provided by the Reseller to an End User, which is-

 

  • the Device which the Reseller has purchased from Rugged SA for on-sale, in the name of the Reseller, to the End-User; or

 

  • a value-added service provided by the Reseller, which is bundled with a Device and/or Rugged SA Service and sold to End Users as a single service;

 

  • Trademarks” means collectively all and any trademarks, trade names, logos, Domain Names and devices or designs of which Rugged SA shall now or in the future be the true and lawful proprietor of and/or which relate to the Devices; which are now or in the future used by Rugged SA in connection with the Devices;

 

  • Termination Date” means the date upon which this Agreement terminates in terms of clause 0, alternatively in terms of clause 17.

 

  • User Documentation” means any and all documentation and manuals supplied by Rugged SA, including user instructions, any terms and conditions, or other packaging pertaining to a Device, and furnished to the Reseller for distribution along with the relevant Device;

 

  • VAT” means Value Added Tax as defined in the Value Added Tax Act No 89 of 1991, as amended from time to time.

 

  • Reference to months or years shall be construed as calendar months or years.

 

 

  • No provision of this Agreement or any related document shall be construed against or interpreted to the disadvantage of any Party hereto by reason of such Party having or being deemed to have structured or drafted such provision.

 

  • In this Agreement, words importing the singular include the plural and vice versa and words importing gender include all genders.

 

  • Unless specifically otherwise provided, any number of days prescribed in this Agreement shall be determined by excluding the first and including the last day or, where the last day falls on a Saturday, Sunday or public holiday, the next succeeding business day.

 

  • This Agreement shall be incorporated in and shall apply consistently to every reseller agreement entered into between the Reseller and Rugged SA whether such contract of sale is concluded orally or in writing.

 

  • In the event of ambiguity or conflict between any of the constituent parts of the Agreement, the order of precedence in the interpretation of the Agreement shall be-

 

  • the Agreement; and then

 

  • the Annexures; and then

 

  • the relevant Order Form.

 

  1. INTRODUCTION

 

  • Rugged SA is the lawful owner of the Devices and conducts business as, inter alia, a rugged mobile device provider to customers.

 

  • Rugged SA wishes to appoint the Reseller to act as a reseller in respect of the Devices and to market, promote, sell and support the Devices to End Users on the terms and conditions as set out herein.

 

 

 

  1. APPOINTMENT

 

Rugged SA hereby appoints the Reseller as a non- exclusive reseller of the Devices to End Users and the Reseller hereby accepts such appointment.

 

  1. DURATION

 

Unless otherwise stated in the Agreement, this Agreement shall commence on the Effective Date and shall continue for a period of twelve (12) months where after either Party may terminate this Agreement on sixty (60) days written notice to the other Party.

 

  1. RELATIONSHIP BETWEEN THE PARTIES

 

  • The relationship of the Parties in terms of this Agreement shall be that of reseller and principal. The Reseller shall only be entitled to act as the Reseller for Rugged SA in relation to the Devices to the extent specifically authorised in this Agreement. No partnership, joint venture, employment, principal and agent, or franchise relationship is created hereby.

 

  • The Reseller shall have no authority and shall make no representations, warranties, or statements on behalf of Rugged SA and neither of the Parties hereto shall bind or be liable for the debts or obligations of the other.

 

  1. SALE OF DEVICES TO THE RESELLER

 

  • The Devices to be provided in terms hereof shall be in accordance with each individual Purchase Order that is completed by the Reseller.

 

  • The Reseller shall in writing provide Rugged SA with a Purchase Order chosen by the Reseller which will be accepted by Rugged SA in writing.

 

  • A valid and binding contract will only come into force once both Parties have signed or accepted the Purchase Order in writing, or if Rugged SA supplies, or tenders to supply, the Devices to the Reseller, or by providing the Reseller with a written Quotation.

 

  • Rugged SA shall not be committed to provide any Devices to the Reseller that is not set out in the Purchase Order provided by the Reseller and the written Quotation provided by Rugged SA.

 

  • Each Purchase Order that has been accepted by Rugged SA shall constitute an agreement between the Parties subject to and regulated by this Agreement.

 

  • Should the Reseller cancel or vary an order subsequent to a valid and binding contract of sale coming into force, and should Rugged SA have already placed an order for the Devices with its manufacturers/suppliers then, notwithstanding any other rights which Rugged SA may have in law, Rugged SA shall be entitled to charge the Reseller the full Price of the Devices so ordered.

 

  • Unless otherwise specifically agreed in writing any terms and conditions forming part of any documentation supplied by the Reseller, which is in conflict with these terms and conditions, shall not form part of this Agreement and shall be of no force or effect.

 

  1. RE-SALE OF DEVICES BY RESELLER

 

  • The Reseller shall be solely responsible for the invoicing and collection of all amounts due to it by End Users. The Reseller’s obligations to Rugged SA shall in no way whatsoever, be affected by the invoicing and collection activities of the Reseller in relation to End Users.

 

  • The Reseller accepts that Rugged SA will not under any circumstances be held liable for any trading terms which the Reseller grants to the End Users, which may offer more favourable terms than the terms which Rugged SA grants to the Reseller under this Agreement. To this extent, the Reseller hereby undertakes to unconditionally and irrevocably indemnify Rugged SA.

 

  • In the re-sale of Devices, the Reseller shall make no representation and give no warranty or undertaking, whether directly or indirectly and whether express or implied, in respect of any of the Devices which are not specifically authorised by Rugged SA in writing.

 

  1. RE-SALE, BUNDLING AND RE-LABELLING

 

  • The Reseller may, subject to clause 2 below –

 

  • re-sell the Devices; or

 

  • bundle its own value-added Reseller Service with a Rugged SA Device for sale to End Users.

 

  • The Reseller may specifically not re-label the Rugged SA Services or Devices for on-sale as Reseller re-labelled services without the prior written consent of Rugged SA.

 

  • Where the Reseller sells Reseller Services in accordance with clauses 1.1 and 8.1.2, the Reseller undertakes to comply with all Laws in the provision of the Reseller Services and hereby unconditionally and irrevocably indemnifies Rugged SA against any and all claims, losses, damages (whether direct or special), actions, costs of whatsoever nature, which may arise from the Reseller’s non-compliance with any Laws.

 

  • Subject to clause 2 above, the Reseller may co-brand the services to be on-sold with the prior written consent of Rugged SA.

 

  1. PAYMENT TERMS AND INVOICING

 

  • The Reseller shall pay to Rugged SA the Prices and charges set out in each Purchase Order on or before the Due Date, without any set off or deduction, including, without derogating from the generality of the foregoing, all and any taxes as may be imposed on the Reseller.

 

  • Unless expressly stated to the contrary, all Prices specified in any Purchase Order shall be inclusive of VAT.

 

  • The prices quoted by Rugged SA are based on the cost to Rugged SA of material, labour, transport, customs, excise, insurance, railage, delivery costs and rates of exchange ruling at the date of the sale (“rates and charges”). In the event of there being any increase or decrease which affects all or any of such rates or charges prior to delivery, the prices will be subject to variation proportionately and without prior notice, at the discretion of Rugged SA.

 

  • Rugged SA shall, in relation to all Prices and charges due under this Agreement, provide the Reseller with a detailed monthly statement of account (together with all related tax invoices) setting out the amount due and payable by the Reseller.

 

  • Rugged SA may include on any invoice any amount not previously billed for calendar months prior to the current month.

 

  • If the Reseller fails to object to any item appearing on Rugged SA’s statement of account within 14 (fourteen) days of date of the dispatch, the accounts shall be deemed to be in order in all respects.

 

  • All tax invoices shall be payable by the Reseller on or before the Due Date thereof by electronic funds transfer into a banking account specified by Rugged SA in writing, and same shall only be considered a payment, duly received by Rugged SA, once the amount has been cleared in Rugged SA’s bank account.

 

  • If any amount is overdue, the Reseller shall pay interest on the overdue amount at a rate of two percent (2%) per month, calculated daily and compounded monthly in arrears from the due date, to date of full and final payment.

 

  • The Reseller agrees that the amount due and payable to Rugged SA shall be determined and proven by a certificate issued by Rugged SA and signed on its behalf by a director of Rugged SA (whose designation and authority need not be proven) and that such certificate shall constitute binding prima facie proof of the indebtedness of the Reseller. Such certificate shall be sufficient for purposes of judgment, provisional sentence or any other legal proceedings.

 

  1. ORDERING AND DELIVERY

 

  • Should the Reseller elect to have the Devices delivered to it, the Reseller agrees that the Devices will be offloaded at the nearest accessible point on site indicated by the Reseller at the agreed address for delivery. Off‑loading of the Devices shall be at the sole risk and cost of the Reseller, who shall be responsible for any and all damage of whatever nature caused as a result of the off-loading of the Devices. Rugged SA, its employees or the employees of agents and/or subcontractors of Rugged SA shall not be held liable for any damage to any of the Devices delivered during the off-loading process, arising from any cause whatsoever. Risk in and to the Devices shall pass to the Reseller the moment the Devices are ready for off-loading at the Reseller’s premises from Rugged SA’s vehicle/s.

 

  • If the Reseller elects to collect the Devices from Rugged SA’s premises using its own or its agent’s transport, such collection shall be entirely at the Reseller’s risk, and the Reseller shall be responsible for all damage of whatsoever nature caused as a result of or during such collection or thereafter. The risk in the Devices will pass to the Reseller at the time that the Devices are made available for collection at Rugged SA’s premises.

 

  • Any delivery date indicated by Rugged SA or the Reseller shall not bind Rugged SA to affect delivery on such date. Rugged SA shall use is best endeavours to deliver the Devices on such dates, but shall not in any way be liable for any damages that the Reseller may suffer as a result of the failure by Rugged SA or its agent to deliver the Devices in time. The Reseller shall accept delivery when it is tendered and shall not be entitled to cancel any order, withhold or defer payment, reduce the price or be entitled to any other remedy against Rugged SA by reason of such delay.

 

  • If Rugged SA fails to take delivery of the Devices ordered, or in any way delays the delivery of the Devices ordered, when delivered or tendered for collection by Rugged SA, then the risk in the Devices shall immediately pass to the Reseller and the Reseller shall be liable to pay Rugged SA the reasonable costs of storing, insuring and handling the Devices, until delivery takes place.

 

  • Notwithstanding any other provision to the contrary, the obligation to deliver the Devices shall in all cases be subject to the availability to Rugged SA of the Devices ordered.

 

  • The Reseller agrees that the signature of any agent, contractor, sub-contractor or employee of Rugged SA on Rugged SA’s official delivery note and/or invoice and/or waybill, or the delivery note of any authorised independent carrier of Rugged SA will constitute delivery of the Devices purchased.

 

  • The Devices shall furthermore be ordered and delivered in accordance with Annexure “A”. Where any other ordering and delivery processes are applicable to any of the Devices, Rugged SA shall advise the Reseller thereof accordingly, where after such ordering and delivery process shall be applicable to the relevant Devices and shall still be subject to the terms and conditions set out in this Agreement.

 

  1. OBLIGATIONS OF RUGGED SA

 

  • Rugged SA hereby undertakes:-

 

  • to provide the Devices to the Reseller or End Users, as the case may be, in accordance with all duly completed and signed Order Forms;

 

  • as it deems reasonably necessary and desirable, to supply the Reseller with all brochures, pamphlets and other administrative documentation required by the Reseller for the purposes of carrying out its obligations hereunder;

 

  • to supply to the Reseller with such Device, price and sales information as Rugged SA deems reasonably necessary or desirable to enable the Reseller to promote the sale of the Devices;

 

  • to work with the Reseller where the Parties have agreed to undertake any joint marketing campaigns. The Parties will agree on the terms of each joint marketing campaign as and when these are undertaken.

 

  • Upon the termination or expiration of this Agreement for any reason whatsoever all benefits conferred upon the Reseller shall immediately cease and the Reseller shall have no claim, whatsoever, against Rugged SA for the loss of such benefits.

 

  1. OBLIGATIONS OF THE RESELLER

 

  • The Reseller shall –

 

  • comply with the provisions of this Agreement and any applicable Laws in relation to the resale of the Devices;

 

  • ensure that the End Users use and make all reasonable efforts to comply with the terms and principles as set out in this Agreement;

 

  • procure that the End Users, the End User’s employees and/or any other persons permitted by the Reseller and the End User to make use of the Devices, comply with clauses 1.1 and 12.1.2;

 

  • use reasonable efforts to ensure that it, its employees, End Users, any End User’s employees and/or any other persons permitted by the Reseller or any End User to make use of the Devices, do not by any act, or omission, damage, interfere with or impede the operation of Rugged SA; and

 

  • where it is aware that there is any violation or contravention contemplated in clauses 1.2 to 12.2.4, undertake that it will co-operate to the extent reasonably necessary and provide Rugged SA with the necessary information to assist in identifying, preventing or remedying or rectifying such violation or contravention;

 

  • provide prompt, reliable and competent technical and other assistance to End Users with respect to the Devices; and

 

  • conduct its business in a professional manner that will reflect favourably on Rugged SA and the Devices and not engage in deceptive, fraudulent, misleading, illegal or unethical business practices, whether with respect to the Devices or otherwise.

 

  • The Reseller undertakes:-

 

  • not to do anything or to omit to do anything, the doing or omission of which in any way whatsoever is likely to adversely affect or reflect negatively on the name or business or goodwill of Rugged SA; and

 

  • not give any warranty in relation to the Devices, other than Rugged SA’s standard warranty or the warranty provided by the manufacturer of the Devices;

 

  • not to hold Rugged SA out or bind Rugged SA to have made any representations or warranties regarding the Devices other than those contained in the relevant Service Schedule/s and promotional material approved by Rugged SA;

 

  • to ensure that all User Documentation relevant to the applicable Device, including any terms and conditions, or other packaging, as well as any additional disclosures, descriptions or instructions reasonably necessary for the operation of the Device, are distributed to End Users by the Reseller;

 

  • not make any modifications of whatsoever nature to the Devices or their packaging or alter, deface, cover, obscure or remove, transfer or otherwise tamper with any of the Devices, trademarks, trade names, trade descriptions or other means of identification of the Rugged SA Devices without Rugged SA’s prior written approval;

 

  • not offer to sell, display or sell any Devices or Rugged SA Services, if the Reseller knows, or reasonably could determine or has reason to suspect that a trade description applied to those Devices or Rugged SA Services is likely to mislead the End User as to any matter implied or expressed in that trade description. The Reseller shall notify Rugged SA of all such instances;

 

  • to obtain Rugged SA’s prior written approval regarding any marketing, advertising, promotions (including promotional items) and publicity in relation to the Devices;

 

  • ensure that it and any of its agents, representatives or other persons do not display, dispatch or procure the displaying or /dispatching of any advertising or promotional material pertaining to the Devices (including, without limitation, by way of electronic communications), without obtaining Rugged SA’s prior written approval as to the format and content of such material;

 

  • provide Rugged SA with such information and co-operation as may be required by Rugged SA from time to time so as to facilitate compliance with any licence or regulatory conditions which may be applicable to the subject matter of this Agreement.

 

  • The Reseller shall promptly advise Rugged SA, upon request, of any market information that comes to the Reseller’s attention in respect of the Devices, Rugged SA’s market position or the continued competitiveness of the Devices.

 

  • The Reseller shall notify Rugged SA promptly of any complaint or claim made or brought against the Reseller with respect to the Devices.

 

  • In respect of the Devices, the Reseller shall provide its own helpdesk and customer support telephone number for the reporting by End Users of all faults in respect of the Devices. The Reseller shall ensure that End Users report all faults directly to it, and that the Reseller then contacts Rugged SA regarding such faults.

 

  • The Reseller shall have no authority to act in any way whatsoever beyond the authority expressly granted to it in terms of this Agreement.

 

  1. INTELLECTUAL PROPERTY

 

  • Rugged SA is the proprietor of the Devices and all right, title and interest, including all designs, specifications, processes, methodologies created, developments and iterations, new models, modifications, extensions or additions attaching to the Devices.

 

  • Nothing in this Agreement shall give the Reseller any rights in respect of that stipulated in clause 1 and in respect of Rugged SA’s Intellectual Property. The Reseller hereby acknowledges that it shall not acquire any rights in respect thereof and that all such Intellectual Property is and shall at all times remain vested in Rugged SA.

 

  • The Reseller shall notify Rugged SA of any actual, threatened or suspected infringement in the Intellectual Property of Rugged SA which comes to the Reseller’s attention. In addition, the Reseller shall notify Rugged SA of any claim by any third party that the promotion or sale of the Devices infringes the rights of any other person as soon as the Reseller becomes aware of such claim.

 

  • Under no circumstances shall any copyright vest in the Reseller in relation to the Devices, save only that the Reseller shall be entitled to use, but not modify, any marketing material provided by Rugged SA.

 

  • The Reseller undertakes not to use, manipulate or exploit the Devices for any purpose other than re-sale thereof in terms of this Agreement. The Reseller further undertakes not to (in any way) develop, copy or attempt to reverse engineer the Devices, whether directly or indirectly or whether personally or through any third party.

 

  • The Reseller shall not remove, cover, hide or alter Rugged SA’s copyright notices, trademarks, logos, or packaging and undertakes to vigorously protect and preserve the goodwill and image of the Devices and Rugged SA.

 

  • The Reseller undertakes to protect the interests of Rugged SA in and to the Devices and to act with the utmost good faith in relation to all matters of competition in the market and potential risks to the efficacy of the Devices, whether physically or in terms of the intellectual property rights ascribing thereto.

 

  • The Reseller shall not take any legal action relating to the protection or defence of any Intellectual Property rights pertaining to the Devices without the prior written approval of Rugged SA. The Reseller shall assist in the protection and defence of such Intellectual Property rights.

 

  • Rugged SA will assist in the defence of any action brought against the Reseller or its customers based upon the claim (including demands, actions, causes of action, damages, Losses, costs, liabilities and expenses) that the Devices constitute an infringement of any patent, trademark or copyright. The Reseller is obliged to notify Rugged SA promptly in writing of such claim. The defence of any such action shall however be for the Reseller’s cost.

 

  • No further entitlements or licenses may be conferred upon the Reseller unless reduced to writing and signed by Rugged SA.

 

  • The Reseller shall not file or cause to be filed any trademark or domain name that is, or could be perceived to be, confusingly similar to the trademarks held by Rugged SA in relation to the Devices.

 

  1. OWNERSHIP AND RISK

 

Notwithstanding that all risk in and to all Devices shall pass on delivery, ownership in all Devices sold and delivered shall remain vested in Rugged SA until the full Price has been paid.

 

  1. LIABILITY

 

  • Unless otherwise provided in this Agreement, Rugged SA shall not be liable to the Reseller or any third party for any Losses, indirect, consequential, special, incidental or punitive damages, including without limitation, loss of use or lost business, revenue, profits, anticipated savings, reputation or goodwill arising out of or in connection with this Agreement, the Devices, related products and services, documentation and/or the intended use thereof under any principle of delict, contract, warranty, strict liability or negligence.

 

  • The limitation of liability contained in this clause 15 shall apply to the fullest extent permissible in law and shall be for the benefit of Rugged SA and its directors, employees and agents in relation to the performance of this Agreement.

 

  • No warranties, guarantees or representations, express or implied whether by law, contract or otherwise, which are not recorded in this agreement and Rugged SA’s Standard Warranty Terms and Conditions shall be binding on Rugged SA. The Devices are purchased “voetstoots”.

 

  • Without in any way derogating from the provisions of clause 3, Rugged SA’s liability on account of defective Devices shall be limited exclusively to, at Rugged SA’s sole discretion, and subject to same being confirmed in writing by Rugged SA, the repair or replacement of the Devices provided that the Devices are in their original packaging and state.

 

  • Rugged SA shall be entitled to inspect and test the Devices, prior to agreeing to any liability as contemplated in clause 4 above, to ascertain if such defect in the Devices can be attributed to the Rugged SA or whether there are any defects in the Devices at all. If the defects in the Devices are caused as result of the Reseller’s, End-User’s or any of their employees’, representatives’ or agents’ conduct, alternatively if Rugged SA finds that there are no defects in the Devices then the Devices will be returned to the Reseller at the Reseller’s cost.

 

  • The Reseller shall, under no circumstances, be entitled to withhold payment in respect of the Devices.

 

  1. INDEMNITIES

 

  • The Reseller hereby indemnifies and holds harmless Rugged SA, its respective officers, directors, employees, agents, successors, and assigns, from any and all Losses and threatened Losses arising from, in connection with, or based on allegations of, any of the following:-

 

  • any claim or action arising from the Reseller’s or any of the End User’s failure to observe or perform any duties or obligations to be observed or performed on or after the Effective Date by the Reseller in terms of this Agreement;

 

  • any claim or action arising from the Reseller’s or any End User’s negligent or intentional conduct or any contravention by the Reseller, agent, representative or any End User of any applicable law, including the Consumer Protection Act 68 of 2008.

 

  1. BREACH AND TERMINATION

 

  • The Reseller agrees and acknowledges that in the event of:

 

  • the Reseller suffering any civil judgment to be taken or entered against it and failing to satisfy it within 7 (seven) days of the date of the judgment;

 

  • the Reseller repeatedly breaching this Agreement in such a manner that the Reseller’s conduct is inconsistent with the intention or ability of the Reseller to carry out the terms of this Agreement;

 

  • the Reseller being sequestrated or placed under liquidation or enters into business rescue, or commits any act of insolvency, or endeavours to compromise generally with its creditors;

 

  • a change in ownership of the Reseller’s business, or should the Reseller be a company, of its share transactions where the majority of its shareholding is affected;

 

  • the Reseller, being a natural person, dying;

 

  • the Reseller having any pertinent license to conduct business suspended, removed or impaired by any order or decree of any regulatory or judicial authority,

 

then and in that event Rugged SA shall, without detracting from any other remedies which may be available to it, be entitled without prejudice to its rights in law or in terms of this Agreement to cancel this Agreement and claim damages or to claim specific performance of all the Reseller’s obligations together with damages, if any, whether or not such obligations have fallen due for performance.

 

  • Without in anyway derogating from clause 1, should either Party breach any of the provisions contained in this Agreement (“the defaulting party”), and fail to remedy such breach or default within 7 (seven) days of receiving written notice from the other Party (“the aggrieved party”) to remedy such breach, then the aggrieved party shall be entitled to cancel this Agreement or to claim specific performance, without prejudice to any other rights the aggrieved party may have at law including the right to claim damages.
  • Upon the Termination Date, all sums due to Rugged SA by the Reseller shall immediately become due and payable forthwith regardless of any other provisions of this Agreement. Rugged SA reserves the right to upon termination of this Agreement cease any further delivery of any Devices irrespective of whether orders  were accepted prior to such termination.

 

  • Upon termination of this Agreement, the Reseller may continue to dispose of its existing inventories of the Devices through existing sales channels or customers but the Reseller shall otherwise discontinue the promotion and/or marketing of all Devices. The Reseller shall cease all displays, advertising and use of the Rugged SA’s names, trademarks, logos, and Intellectual Property.

 

  1. CONFIDENTIALITY

 

  • The Reseller agrees and undertakes:-

 

  • except as permitted by this Agreement, not to disclose or publish any Confidential Information, including this Agreement, without the prior written consent of Rugged SA;

 

  • except as permitted by this Agreement, not to use the Confidential Information for any purpose whatsoever without the prior written consent of Rugged SA;

 

  • to restrict the dissemination of the Confidential Information to only those of its employees who are actively involved in activities for which use of the Confidential Information is authorised and then only on a ‘need to know’ basis and to take all practical steps, both before and after disclosure, to impress upon its employees who are given access to Confidential Information, the secret and confidential nature thereof.

 

  • The Reseller acknowledges that the Confidential Information disclosed by Rugged SA to the Reseller or which otherwise comes to the knowledge of the Reseller, does not confer any rights of whatever nature in such Confidential Information on the Reseller.
  • The onus to establish whether the Confidential Information falls within the exclusions referred to in clause 1.3 above shall rest on the Reseller.

 

  • The Reseller shall protect the Confidential Information in the manner, and with the endeavour of a reasonable person protecting his own Confidential Information.

 

  • This clause 18 is severable from the rest of the Agreement and shall remain valid and binding on the Reseller for a period of three (3) years after Termination Date.

 

  • Immediately following the Termination Date, the Reseller shall deliver to Rugged SA, all documents, samples, note books, charts, files, records and any information or documentation containing or referencing Confidential Information, including copies, summaries and notes in its possession or control.

 

  1. DISPUTES

 

  • In the event of any dispute, disagreement or claim arising from or in connection with this agreement, Rugged SA shall have the option, in its sole discretion, to refer such dispute, disagreement or claim for determination by way of arbitration in Johannesburg.

 

  • The Reseller irrevocably agrees and consents to the arbitration should Rugged SA elect to proceed in this manner.

 

  • The arbitration shall be conducted in accordance with the expedited rules for arbitrations of the Arbitration Foundation of Southern SA (“AFSA”). The arbitrator will be a person agreed upon by the parties or failing agreement, appointed by the Legal Practice Council.

 

  • Rugged SA and the Reseller agree that the arbitrator may make an award as to the costs of the arbitration and that the decision of the arbitrator in the arbitration proceedings shall be final and binding on each of them.

 

  • Notwithstanding the above, either party shall be entitled to institute legal proceedings in any Court of competent jurisdiction in South Africa, provided that arbitration proceedings have not already been instituted.

 

  • Either party shall be entitled to recover from the other party all costs incurred by it in enforcing any rights that it has hereunder, including collection charges, costs on an attorney and own client scale, costs of counsel as on brief (whether incurred prior to or during the institution of legal proceedings), or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.

 

  1. NOTICES AND DOMICILIA

 

  • The Parties elect the addresses as set out in Annexure B as their respective domicilium citandi et executandi, for service of all notices or process arising out of this Agreement.

 

  • The Parties may change their domicilium citandi et executandi by notifying the other Party, in writing.

 

  • All notices to be given in terms of this Agreement will be given in writing, and will –

 

  • be delivered by hand during business hours and shall be presumed to have been received on the date of delivery. Any notice delivered after business hours or on a day which is not a business day will be presumed to have been received on the following business day; and

 

  • if delivered via email during business hours, be presumed to have been received upon successful transmission of the data message. Any email sent after business hours or on a day that is not a business day will be presumed to have been received on the following business day.

 

  • Notwithstanding the above, any notice given in writing, in English, and actually received by the Party, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause.

 

  1. FORCE MAJEURE
    • Rugged SA shall not be held liable in any way for failure in performance, delay, loss or damage due to war, strike, fire, explosion, power black-out, earthquake, flood, civil disturbance, government requirements, weather, acts of God, pandemics, epidemics, interruptions in transportation facilities, acts or omissions of carriers, accidents or other cause(s), beyond its reasonable control, whether or not similar to the foregoing. Upon the occurrence of such event, the Party so affected shall be excused from such performance to the extent of such prevention, restriction or interference, provided that the Party so affected shall take all reasonable steps to avoid or remove such cause(s) of non-performance and shall continue performance hereunder with dispatch whenever such cause(s) are moved.

 

  • A Party affected by any occurrence of force majeure, as envisaged above, shall give written notice of the said occurrence to the other Party and in such notice shall indicate, so far as reasonably possible, the anticipated duration of the force majeure and whether or not partial performance is possible, and if so the extent of the partial performance offered.

 

  1. CESSION AND ASSIGNMENT

 

No rights, duties or liabilities under this Agreement may be ceded, assigned, transferred, conveyed or otherwise disposed of by the Reseller without the prior written consent of Rugged SA, which consent shall not be unreasonably withheld.

 

  1. GENERAL

 

  • This Agreement be binding upon the successors in title and permitted assigns of the Parties or either of them.

 

  • This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.

 

  • This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on either of the Parties.

 

  • No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.

 

  • No waiver of any of the terms and conditions of this Agreement will be binding or effectual for any purpose unless in writing and signed by the Party giving the same. Any such waiver will be effective only in the specific instance and for the purpose given. Failure or delay on the part of either Party in exercising any right, power or privilege hereunder will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

 

  • All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to being void, invalid, illegal, unlawful or for any other reason whatever, 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 and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.

 

  • This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party last signing one of the counterparts.