Belting Edge – Terms of Sale

31 October 2019 | Version 1.1

1.              Introduction

These are the general terms of our relationship with you. They cover any transactions where we provide goods or services to you. Under these terms:

• we are the goods provider, Belting Edge; and
• you are our customer.

2.              Agreement

2.1.          Composition. The agreement consists of these terms of service and any orders or any other specific terms applicable to the services.

2.2.          Definitions. In the agreement:

AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its place)

business day means any day other than a Saturday, Sunday, or holiday (including a public or bank holiday) in the jurisdiction where we are organised;

business hours means our normal business hours on business days;

day means a day counted from midnight to midnight, including all days of the month, Saturdays, Sundays, and public holidays;

derived data is any of our own data that we create from your data, such as through aggregation, de-identification, or anonymization;

order means a separate document or form, including a webform, that contains the commercial terms of each specific transaction and incorporates these terms of sale;

personnel means any representative, including any director, employee, agent, affiliate, consultant, or contractor

sign means the handwritten signature or an electronic signature that the parties agree to use, of each of the parties’ duly authorised representatives; and

we, us, or our means Belting Edge CC (Registration Number: B2006094441) and includes our officers, agents, employees, owners, co-branders, and associates where the terms limit or exclude our liability;

writing means the reproduction of information or data in physical form or any mode of reproducing information or data in electronic form that the parties agree to use, but excludes information or data in the form of email;

you, you or your means the customer who places orders with us.

2.3.          Interpretation. The following rules apply to the interpretation of the agreement:

• reference headings – clause and subclause headings are for reference only and do not affect interpretation;
• non-exhaustive lists – whenever a clause lists specific examples or items following a listing word, such as ‘including’, ‘includes’, ‘excluding’, or ‘excludes’, they will not limit its scope;
• undefined words or phrases – all words or phrases that the agreement not define have their ordinary English meaning;
• enactment references – references to any enactment include it as re-enacted, amended, or extended;
• person references – references to a person includes a natural and juristic person;
• party references – references to a party includes their successors or permitted assigns;
• number of days – when any number of days is prescribed, the first day will be excluded and the last day included;
• no interpretation against the draftsman – the rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply; and
• time calculations – the parties will use GMT +2 to calculate any times.

2.4.          Departure. These terms apply to all our customers and are not generally open to negotiation for reasons of consistency. Should the parties negotiate any departure from these terms, they will record that departure in the relevant order or other specific terms.

2.5.          Conflict. If there is a conflict of meaning between these terms and any word or phrase in an order or other specific terms, the meaning in the order or specific terms will prevail in respect of the relevant services.

3.              Duration

3.1.          Commencement. These terms start whenever you accept them by:

• doing so explicitly – such as by checking a checkbox saying that you do or agreeing to an order that incorporates them by reference;
• using the services in any way – such as by accessing the website or ordering goods;

and continue until terminated.

4.              Orders

4.1.          Placing orders. You place orders with us whenever you place an order for goods through the website. These orders are offers from you to us to buy our goods or services.

4.2.          Capacity and authority. You warrant that you have the legal capacity and authority to enter into the agreement.

4.3.          Invitation to do business. Marketing is merely an invitation to do business and we only conclude the agreement when we actually ship the goods to you.

4.4.          Cancellations. We may cancel any order, but we will refund any money you have paid in relation to that particular order if we do.

4.5.          Fees. Despite our best efforts, the stated fees may be incorrect. We will confirm the fees for any goods when we accept your offer.

4.6.          Time and place. We conclude the agreement when we accept the order and where we are domiciled when we do.

4.7.          Stock availability. We may not always have the goods on which you make offers in stock. You may cancel the offer or make another offer on the part of the goods that are in stock.

4.8.          Separate agreements. Each order is a separate agreement, but you are deemed to have breached all of them if you breach one of them.

5.              Goods

5.1.          Sale. We sell the goods to you who purchases them on the terms of the agreement.

5.2.          Countries. You may only make offers for goods for delivery to the countries specified by us. If your shipping or billing address is not amongst those specified, you must not make an offer. We are only able to sell into the countries specified, and we are only able to ship to those countries.

5.3.          Freight and packaging. Unless otherwise agreed in an order the goods will be supplied on the following basis:

5.4.          Time until dispatch. Once we receive an offer, we will endeavour to dispatch the goods as soon as reasonably practicable (which may be longer than 30 calendar days) to the address specified in the offer. We will try to adhere to the estimated delivery dates but accept no liability for failing to do so. You may not withdraw any offer due to a delay in delivery.

5.5.          Risk and ownership. All risk of loss or damage to the goods will pass to you upon physical delivery of the goods to your delivery address. Ownership in the goods will only pass to you upon full payment of the fees.

5.6.          Warranty. The goods will be subject to any warranty indicated in the description of the goods appearing on the accompanying documentation, packaging, or EULA. Please review those documents carefully. You will have the same rights against us as we have against the supplier regards defects in the goods, the intention being that our liability to you will be co-extensive with the right of recourse we have against the supplier. We will provide a copy of any warranty on request. To the extent legally possible, we assign to you the benefit of any supplier warranties that a supplier may give to us regards the goods. You may not waive any of our common law rights as against the supplier.

5.7.          Custom goods. If you ask us to provide you with custom goods, we may charge you any deposit or the full amount for the goods. You may not cancel an order for custom goods prior to delivery, unless we allow this in our discretion. In this case, you will forfeit any deposit or amount already paid for the goods, and we may charge you an additional cancellation fee. The cancellation fee plus the amount forfeited will not be more than the full amount for the goods.

5.8.          Sales representatives. None of our sales representatives have the authority to bind us and no representation, warranty or any other statements made or given by any of our sales representatives will be binding on us, unless given in writing and signed by our duly authorised representative.

5.9.          Resale and exports. If you wish to resell or export any goods, you must obtain all required consents or licences under all applicable laws and regulations that may affect or regulate such resale or export.

6.              Online services

6.1.          Right. We grant you a right to use the services in the form of the website subject to the following limitations:

• duration of agreement – you may only use the services for the duration of the agreement;
• limited to terms – you may only use the services according to these terms;
• non-exclusive – we may allow anyone else to use the services;
• non-transferable – you may not transfer the right to anyone else; and
• specified purposes – you may only use the services for the specified purposes that we’ve communicated to you in writing from time to time.

6.2.          Breach. We may cancel your right if you breach the agreement.

6.3.          Basis. We provide the online services to you on the following basis:

• you give us permission to monitor how you use them for security and stability purposes; and
• you agree that our records are undisputed evidence of the services provided to you.

6.4.          Access conditions. We will only provide online service access to you or your authorised users (where you are a juristic person) on the conditions that you or each one of them will:

• accurately provide us with any information that we ask for on registration or account creation;
• create or have the necessary credentials (such as a username and password) assigned to them on registration or account creation;
• look after their credentials and not give them to anyone else;
• not interfere with or introduce any malicious software into the online services or otherwise misuse them;
• be responsible for any activity that happens under their account, even if someone else was actually acting under their credentials;
• have the necessary infrastructure, equipment, and software to access the online services; and
• abide by the agreement and any policies that we communicate to them in writing.

6.5.          Availability. We will do our best to make the online services available at all times, however we cannot guarantee that they will always be available. We may make them unavailable for scheduled and emergency maintenance.

7.              Your data

7.1.          Definition. Your data is any data belonging to you or your customer that:

• you or your customer (or any third party on your behalf) provide to us; or
• we generate, process, or supply to you or your customer in providing the services;

but excludes any derived data.

7.2.          You own it. You own all your data, but give us a right to use it to provide the services when you provide us with access to it.

7.3.          We do not own it. We do not own any of your data. However, we do own our derived data.

7.4.          Responsibility. We take the protection of your data very seriously and will always do everything in our power to protect it. However, we are not responsible for any of your data stored on the online services, you provide it to us at your own risk, and you indemnify us against any liability for it to the extent allowed by applicable law, including liability for data breaches, unauthorised access, and third party claims.

7.5.          Location. Your data will remain wherever we place it initially, unless we have to transfer it to another country to comply with our obligations to you. You consent to us transferring it to our group of companies, associated companies, service providers, or agents who may be located in other countries for the purpose of providing the services.

8.              Confidential information

8.1.          Definition. Confidential information is any information that the parties share with one another in terms of this agreement with the intention that the other party should keep it secret, such as personal information, business records, or customer details.

8.2.          Responsibilities. Each party will keep any confidential information it receives from the other party under the agreement confidential and the receiving party will:

• protect the other party’s interests;
• only use it to comply with their responsibilities under the agreement;
• only give it to their personnel that need it (and only as much as they need);
• use reasonable security procedures to make sure their personnel keep it confidential;
• get promises of confidentiality from those personnel who need access to the information;
• not reveal the information to anyone else; and
• not use it for any purpose other than under this agreement.

8.3.          End of agreement. The parties will give back to the other all confidential information of the other that they have at the end of the agreement, unless:

• the other party agrees that they may destroy or retain it instead; or
• it is lawfully in the public domain;
• someone else who is allowed to reveal it gives it to them;
• someone gives it to them to comply with a court order or other legal duty.

8.4.          Indemnity. Each party indemnifies the other against any loss or damage that the other may suffer because of a breach of this clause by a party or its employees or agents.

8.5.          Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.

9.              Intellectual property

9.1.          Ownership. We or our third party licensors own all proprietary rights in our goods or services and we or they may prosecute you for any violations of those rights.

9.2.          Our technology. Our technology is anything that we have or acquire rights in and may use to perform our obligations under the agreement.

9.3.          Retention of rights. We own all intellectual property rights in our technology and you may not use those rights without our permission. You do not acquire any rights in our technology if we use it to provide the goods or services to you.

9.4.          Our trademarks. Our trademarks are our property and you may not use them without our permission. All other trademarks are their respective owners’ property.

9.5.          Restrictions. You may not change, hire out, reverse engineer, or copy the goods or services without our permission.

10.          Non-solicitation

You will not contract with any of our personnel, other than through us, who were involved in providing the goods or services under an order for the duration of that order or for 12 calendar months after its termination.

11.          Fees and payment

11.1.       Payment. You will pay us the fees on the due date in the manner agreed between the parties in writing. You may not withhold payment of any amount due to us for any reason.

11.2.       Late payments. Additional charges agreed between the parties in writing apply to any payment we receive after the due date and you must pay them to us on demand. We may stop providing any services or withhold or remove any goods until you have paid all amounts due.

11.3.       Interest. Overdue amounts on any outstanding invoice will bear interest for our benefit from its due date until you pay it at whichever rate is higher between:

• 2% above the prime (or prime lending) rate; or
• 15%.

Interest will be payable on a claim for damages from when the damages were suffered.

11.4.       Appropriation. We may use any money you pay us to settle your indebtedness under the agreement, despite any particular reason you may have paid it to us.

11.5.       Certificate. We may appoint an accountant to sign a certificate that will be proof of the amount due by you and the date on which it is payable.

11.6.       Tax. All fees exclude any tax (unless indicated otherwise), which you will pay where applicable in addition to the fees.

11.7.       Payment profile. We may provide any registered credit bureau with information about your payment of amounts.

12.          Our warranties

12.1.       Service warranties. We warrant that we will:

• employ enough trained personnel with the knowledge and expertise to provide the services;
• use reasonable efforts consistent with prevailing industry standards to maintain the services; and
• provide the goods or services in accordance with all applicable laws.

12.2.       General warranties. We warrant further that we:

• have the legal right and authority to perform our obligations under the agreement; and
• will not knowingly introduce any malicious software into your systems.

13.          Disclaimer of warranties

13.1.       Own risk. We provide the goods or services “as is” and on an “as available” basis, and you use them at your own risk. To the extent allowed by applicable law, we do not give any express or implied warranty or make any other promise about the goods or services. For example, we do not warrant that they are good quality, fit for any particular purpose, accurate, complete, up-to-date, legally effective or secure. We also do not warrant that they are free of latent defects, errors, infringing content or malicious software, or that you will have quiet or uninterrupted use of them.

13.2.       Exclusion of liability. Despite our warranties, we are not liable for any defects that your negligence, failure to follow our instructions, or misuse causes.

14.          Your warranties

14.1.       Agreement warranties. You warrant that:

• no one has induced you to enter into the agreement by any prior representations, warranties, or guarantees; and
• you are not breaching of any other agreement by entering into the agreement.

14.2.       Indemnity. You indemnify us against any claim for damages by any third party resulting from a breach of your warranties, including all legal costs. Legal costs means the costs that a lawyer may recover from their client for their disbursements and professional services if permissible under applicable law.

15.          Limitation of liability

15.1.       Indemnity. You indemnify (or promise to protect) us against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys’ fees) related to your use of this website or your breach of any of your obligations under the Terms of Use or Terms of Service.

15.2.       Faults. We will do our best to fix any fault in this website as soon as reasonably practical after we find out about it. This is the limit of our responsibility and liability for any fault in the website.

15.3.       Direct damages limited.  To the extent allowed by applicable law, we are only liable to you for any direct damages (whether in contract, delict or any other legal theory) that the services may cause up to the total amount of fees (relating to the claim) that you have already paid us for them over the 1-month period immediately preceding the claim.

15.4.       Indirect damages. We will never be responsible for any indirect or consequential damages or losses, even if we should have foreseen them. These may include any loss of profit, loss of goodwill, loss of use or damages related to lost or damaged data.

15.5.       Your default. We are not liable for any damage or loss that your breach, misrepresentation, or mistake causes.

16.          Breach and termination

16.1.       Breach. If either party

• does not fix a breach within seven days of receiving written notice from the other party;
• breaches the agreement materially twice or more in six months;
• is bankrupt or has some legal disability;
• takes steps to or is closed down (such as becoming insolvent or entering sequestration);
• makes any settlement or arrangement with their creditors; or
• fails to pay a court order against themselves for a significant amount within 21 days;

then the other party may:

• make the party comply with the agreement; or
• immediately cancel the agreement in writing and claim damages from the other party, including fees already due.

16.2.       Suspension. We may immediately suspend your right to use the website if:

• you try to gain unauthorised access to it;
• we decide that your use poses a security threat to us or another user other than you;
• there is evidence of fraud on your account; or
• we believe you are using it for an illegal purpose or in way that infringes a third party’s rights.

17.          Termination

17.1.       Termination for good cause. We may cancel this agreement immediately if we:

• discontinue or stop providing the goods or services;
• believe providing the goods or services could burden or pose a risk to us;
• have to terminate to comply with a law; or
• determine that providing the goods or services has become impractical.

If we need to terminate, we will give you as much notice as reasonably possible in writing.

17.2.       Duties on termination. On termination, cancellation, or expiry of this agreement, we will stop providing the goods or services, your right to access the website will cease, and we may erase your data.

18.          Effect of termination

18.1.       Acceleration. All amounts due to us for the goods delivered before termination become due and payable on termination, cancellation, or expiry the agreement.

18.2.       Assistance. We may provide you with post termination assistance (such as data retrieval) subject to additional fees and conditions, but are not obliged to.

18.3.       No expectation. The agreement does not create any expectation of continued services, agreement renewal, or any further agreement between the parties.

19.          Resolving disputes

19.1.       Notifying each other. Any dispute concerning this agreement (including interpretation and application) exists once a party notifies the other in writing, detailing the nature of the dispute and requesting that it be resolved as per this clause. The parties must first try to resolve the dispute informally by negotiation by email, phone or other methods.

19.2.       Conciliation. If negotiation fails, we may refer the dispute to conciliation (talks in which an agreed neutral third party tries to help the parties agree on how to end the dispute).

19.3.       Arbitration. If conciliation fails, we may refer the dispute (including any appeal against the arbitrator’s decision) to arbitration (a hearing after which a neutral third party makes a binding decision about the dispute). We must refer the dispute within 15 days under AFSA ’s latest rules for expedited arbitrations. The arbitration will be held in English in Cape Town. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 days after the referral, the secretariat of AFSA will appoint the arbitrator

19.4.       Costs of arbitration. The costs of the arbitration proceedings, including the fees of any arbitrator, will be borne equally between the parties, unless the arbitrator’s award provides otherwise.

19.5.       Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).

20.          General

20.1.       Notices and domicile. The parties will send all notices to each others’ email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our website, while you provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 calendar days written notice to the other.

20.2.       Beyond human control. Neither party is responsible for breach of the agreement caused by circumstances beyond human control, but the other party may cancel the agreement on written notice to the other if the circumstances persist for more than 60 calendar days.

20.3.       Assignment. You may not assign the agreement to anyone. We may assign it to any successor or purchaser of our business or some of our assets.

20.4.       Relationship. The agreement does not create an employment relationship between the parties.

20.5.       Entire agreement. The agreement is the entire agreement between the parties on the subject.

20.6.       Changes. We will notify you of any changes to the agreement by email. Those changes will only apply to future goods orders. If you do not agree with the changes, you must stop using the website or ordering from us. If you continue to use the website or place orders with us following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.

20.7.       Waiver. Any favour we may allow you will not affect any of our rights against you.

20.8.       Severability. Any term that is invalid, unenforceable, or illegal may be removed from the agreement without affecting the rest of it.

20.9.       Governing law. South African law governs this agreement.

20.10.    Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.