Standard Terms and Conditions

1. INTERPRETATION

In these Conditions:

1.1.1 "Agreement" means these Standard Terms and Conditions of Sale and/or any special terms and conditions agreed in writing between Protech Software and the Client;

1.1.2 "The Application" means the Credit Application completed and signed by the Client and to which the conditions are attached.

1.1.3 "Client" means the person /entity cited in the application and who signs these conditions and "Client" shall have a corresponding meaning.

1.1.4 " Computer Hardware" means the computer system or systems on which the Software runs

1.1.5 "Conditions" means these Standard Terms and Conditions of sale as set out in this document;

1.1.6 “Confidential information” means includes, without limiting its ordinary meaning or its more general definition as above, oral, written, printed, photographically and electronically recorded information, documents, letters, agreements, undertakings, messages, codes, data, marketing methods, user lists, pricing policies, projects, projections, notes and extracts thereof

1.1.7"Conditions" means the Standard Terms and Conditions of Sale set out in this document;

1.1.8 "CPA” shall mean the Consumer Protection Act 68 of 2008;

1.1.9 "Credit Act” means the National Credit Act 34 of 2005;

1.1.10 “The Designated Operators” mean persons designated as the main users of the software or an appointed representative (stand-in). Only this person(s) may contact Protech Software for telephonic support unless otherwise agreed;

1.1.11 “Functionality Failure” means failure of the software to perform its intended goals as per the project specifications. Note the software will not be deemed in this manner should the Client processes not adapt accordingly;

1.1.12 “Protech Software” means a close corporation registered and incorporated in terms of the Close Corporation Act with registration number 2003/032457/23 and having its principal place of business at 18 Braam Fisher Drive, Randburg (Pinepark), Gauteng, Republic of South Africa and “Supplier” shall have a corresponding meaning;

1.1.13 Network Infrastructure "means the overall network system including server (if present), speed, security and stability.

1.1.14 “Operating Environment” means the environment in which the software runs including computer hardware and network infrastructure;

1.1.15"Order" means a Quotation as issued by Protech Software to a client which is accepted by such client as evidenced by its signature thereto.

1.1.16 "Product/s" means generally the range of software packages as published from time to time in the Products Catalogue on its official website and specifically from those software packages, the software package to be sold and supplied to the Client in accordance with an Order and in terms of these Conditions.

1.1.17 "Parties" means Protech Software and the Client and "Party" shall mean any one of them as the context may require;

1.1.18 "Quotation" means a written quotation issued by Protech Software to a client in respect of the Products to be sold and supplied Protech Software to a client, which when accepted and signed by such client constitutes an Order;

1.1.19 “Workaround” means a means of restoring functionality after critical failure which doesn’t necessarily include programmatically fixing the software

1.1.20 “Software” means the object code version of the intangible information constituting one or more computer or apparatus programs and the informational content of such programs, together with any documentation supplied in conjunction with and supplementing such programs, the foregoing being provided to the customer by way of electronic transmission or by being fixed in media furnished to the customer;

1.1.21 "Software Revision" means Software revisions are two stipulated dates that Protech Software will allocate to the Client.

1.1.22 "Writing" includes telex, cable, e-mail, facsimile transmission and comparable means of communication.

1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. BASIS OF SALE AND SUPPLY

2.1 Protech Software shall sell and the Client shall purchase the Products in accordance with any Order of the Client which is accepted by Protech Software in accordance with these conditions.

2.2 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Protech Software shall be subject to correction without any liability on the part of Protech Software.

3. ORDERS AND SPECIFICATIONS

3.1 No Order submitted by the Client shall be deemed to be accepted by Protech Software unless and until confirmed in Writing by Protech Software.

3.2 The quantity, quality and description of and any specification for the Products shall be those set out in the Client's Order.

4. PRICE OF THE PRODUCTS

4.1 The price of the Products shall be Protech Software's quoted price subject always to the provisions of clause 4.2.

4.2 Protech Software reserves the right, by giving notice to the Client at any time before delivery and installation of the Products, to increase the price of the Products to reflect any increase in the cost to Protech Software which is due to any factor beyond the control of Protech Software (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Products which is requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give Protech Software adequate information or instructions.

4.3 The price is exclusive of any applicable value added tax, which the Client shall be additionally liable to pay to Protech Software.

4.4 Subject to any special terms agreed in Writing between the Client and Protech Software, Protech Software shall invoice the Client for the price of the Products simultaneously with the delivery and installation of the Products or

4.5 The Client shall pay the price of the Products strictly in accordance with the terms and conditions as set out in an Order. The time of payment of the Price shall be of the essence of the Contract and the failure by the Client to pay the Price strictly in accordance with the terms and conditions as set out in the Order shall be deemed to be a material breach by the Client going to the root of this Agreement.

5. SUPPLY AND INSTALLATION OF PRODUCTS

5.1 Protech Software shall supply and install the Products at the place as specified by the Client in the Order.

5.2 Any dates quoted for supply and installation of the Products delivery of the Products are approximate only and subject to clause 5.4 below, Protech Software shall not be liable for any delay in the supply and installation of the Products howsoever caused.

5.3 Time for supply and installation of the Products shall not be of the essence of the Contract unless previously agreed by Protech Software in writing.

5.4 The Products may be supplied and installed delivered by Protech Software in advance of the quoted supply and installation date upon giving reasonable notice to the Client.

5.5 A claim that Products supplied and installed are not in accordance with the Order will not be accepted by Protech Software unless notice in writing by the Client specifying the alleged default, is given to Protech Software within 10 days of the supply and installation of the Products.

5.6 The Client understand that the product supplied is as per the sales agreements and software demonstrations and therefore “assumed” functionality will not be taken into consideration.

6. OWNERSHIP AND RISK

6.1 Notwithstanding the supply to the Client and the installation of the Products, Protech Software shall retain ownership of the products until Protech Software has received in cash or cleared funds, payment in full of the price of the Products.

6.2 All risks in and to the products shall pass to the Client upon delivery of the products supply to it and installation of the Products.

6.3 Until ownership of the Products has passed to the Client, the Client shall:

6.3.1 Maintain the Products in satisfactory condition.

6.3.2 Keep the Products free from attachment, landlord’s hypothec, lien or any other legal charge or process;

6.3.3 not without the prior written consent of Protech Software sell, let, loan, pledge, transfer, otherwise make over or encumber the Products;

6.3.4 Forthwith in writing notify its landlord of Protech Software's reservation of ownership in the Products and furnish Protech Software with proof of such written notification

7. Protech Software OBLIGATIONS

7.1 Provide Telephonic/Email Support of The Software for the full Term providing the annual license, SLA fees and or any other fees are up to date.

7.2 Resolve, or provide a Workaround for any Critical Failure, with all reasonable effort within 48 working hours of being informed by a Designated Operator unless otherwise stipulated.

7.3 Programmatically repair the Software, with reasonable effort within 3 working days of Critical Failure unless we notify the Client otherwise.

7.4 Resolve Functionality Failure within 7 working days where applicable unless we notify the Client otherwise.

7.5 Provide at least one free Upgrade during a Term. Any suggestions sent via email by the Designated Operators will be accepted, but the breadth and timing of this Upgrade are entirely at the discretion of Protech Software and the monetary value allocated to customization. This upgrade is only available if annual license fees are applicable and the system has incurred no major customisation.

8. CLIENT OBLIGATIONS

8.1 To allow only Designated Operators to contact Protech Software for Telephonic/Email Support. (Note there can be more than one designated operator should the need arise)

8.2 To pay the Annual License and SLA fee when due.

8.3 Not to install The Software on any computer other than those agreed to in writing or as per the Quotation.

8.4 Not to distribute the Software to any third party.

8.5 Not to make any modifications to the Software unless agreed to in writing to maintain the Computer Hardware and provide a stable Operating Environment for the Software as per the Infrastructure Requirements

8.6 To permit Protech Software’s’ discretionary use of their name and the services that fall under this agreement for the purposes of promotion, marketing or advertising, subject provided that the nature of such use of name and description of service rendered will not bring the Client into unreasonable disrepute. This is subject to prior written approval of the Client being obtained.

8.7 To ensure that the Designated Operators abide to the review times as stipulated.

8.8 Provide all software changes during review development meetings or before or on review dates in written format.

8.9 Ensure that all information about the software regarding changes and bug fixes is provided to Protech Software by only designated operators. Therefore it will be the operator’s responsibility to ensure all changes and fixes are provided.

8.10 To understand that the internal buy-in and usage of the software is the Clients responsibility.

9. SERVICE LEVEL AGREEMENT

9.1 Protech Software offers post supply and installation of the Products ongoing support and maintenance services for the Products. The Client has the option to enter into a Service Level Agreement with Protech Software for the future and ongoing support and maintenance of the Products.

9.2 Should the Client so elect, the Parties shall enter into and execute a Service Level Agreement.

9.3 Alternatively the Client will be billed on a time a material basis

10. SURETY

As security for the Client's compliance of all of its obligations to Protech Software as set in these Conditions, should it be required a member of the Client ( if a Close Corporation) or director and/or shareholder (if a private company) shall simultaneously with the execution of these Conditions execute the Deed of Surety attached herewith marked "FS. 1"

11. FORCE MAJEURE

Protech Software shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Protech Software's obligations in relation to the Products, if the delay or failure was due to any cause beyond Protech Software's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond Protech Software's reasonable control:


12. BREACH

Should the Client fail to make payment on any amount due on date, or breach any other terms and conditions as contained herein, or commit an act of insolvency, or allow a judgment to be entered against , or be provisionally or finally liquidated or sequestrated, or in the opinion of Protech Software has a cash flow problem or any financial or commercial difficulty which may in any way whatsoever negatively impact on the ability of the Client to comply with it's current or future obligations in terms of this Agreement, then Protech Software without prejudice to and in addition to its other legal remedies shall be entitled to cancel this Agreement or any unfulfilled part thereof, and or to claim payment of the full purchase price or the balance thereof as the case may be and failing such payment, Protech Software is specifically authorized to uninstall and accordingly repossess the Products supplied to and installed at the Client.

13. PROHIBITION OF SET OFF

The Client waives any right of set off it might have against Protech Software in respect of any amount which may now or in the future be or become owing by Protech Software to the Client. The Client agrees and acknowledges that it shall not be entitled to advance the defence of set off or mutual extinction of debts or counter claim in any proceedings which Protech Software may bring against the Client for the enforcement of its rights whether in respect of credit facilities extended by Protech Software to the Client or otherwise.

14. DOMICILIUM

The Client chooses its domicilium citandi et executandi at the address as reflected in the "Application for Credit Facilities”.

15. LEGAL COSTS

In the event that any legal action is taken against the Client, the Client shall be liable for all legal costs incurred by Protech Software on attorney own client basis.

16. APPLICABLE LAW

16.1 All transactions shall be governed in all respects by, and shall be construed according to the laws of the Republic of South Africa.;

16.2 The Client agrees and consents in terms of Section 45 of the Magistrate’s Court Act ("the MCA”) to the jurisdiction of a Magistrate’s Court having jurisdiction in respect of the Client or the claim in terms of Section 28 of the MCA in respect of any proceedings our claims or action being instituted against the Client by the Protech Software in terms hereof or otherwise, notwithstanding that the amount of such claim may exceed the jurisdiction of such Magistrate’s Court, provided that the Protech Software may in its discretion be entitled to bring such proceedings in any other court of competent jurisdiction, the Client agreeing and submitting itself to the jurisdiction of the South Gauteng Division of the High Court of South Africa or any other division of the High Court of South Africa chosen by Protech Software in the event of Protech Software exercising its rights in terms hereof.

17. CPA

The Parties agree that the provisions of the CPA shall not apply to the Client if the Client qualifies as an exempt enterprise which is defined in Section 2 (b) of the CPA.

18. THE CREDIT ACT

18.1 Notwithstanding the preceding provisions of these terms and conditions, in the event that the Credit Act is applicable to this agreement, then:

18.1.1 Should the purchase price of any Products sold not be paid to Protech Software under its payment terms reflected in the Order, then an incidental credit agreement shall be deemed to be concluded in respect of the sale in question, 20 (twenty) business days after Protech Software first charges an administration fee on the amount due in terms of such sale;

18.1.2 The Credit Act, in so far as it applies to an incidental credit agreement, shall apply to the sale and Supply of the Products by Protech Software to the Client;

18.1.3 Protech Software shall be obligated to comply with the Credit Act before being entitled to proceed in terms of clause 18 above and before commencing any legal proceedings against the Client to enforce this agreement; and

18.1.4 Protech Software shall be entitled to recover from the Client all costs and charges permitted in terms of the Credit Act, including, in the event of a payment default, collection cost and default administration charges.

19. CREDIT (ONLY APPLICABLE TO INCIDENTAL CREDIT SALES)

19.1 The Parties agree that the Credit afforded to the Client by Protech Software in terms of this Agreement constitutes an incidental credit agreement as defined in section 1 of the NCA;

19.2 The Customer’s application for the Credit is subject to Protech Software’s credit assessment, approval criteria and conditions being satisfied. Protech Software has the discretion, based on these criteria to decline or approve the Customer’s application;

19.3 An incidental credit agreement in respect of the Credit offered by Protech Software to the Client has been concluded between the Client and Protech Software , the terms of which are contained in this Agreement;

19.4 The Client understands that:

19.4.1 The credit grantor in terms of this Agreement is Protech Software ;

19.4.2 The Client is the consumer/credit receiver and its addresses are as furnished by it on the Credit Application Form and in clause 15 of the Terms and Conditions of Sale Agreement.

19.5 As per the Customer’s instruction on the Credit Application Form, the Client agrees that Protech Software can market to and communicate with the Client and share the Customer’s personal information with its business partners for the purposes of marketing goods and services, unless the Client has chosen/chooses to opt out of receiving such communications at any time;

19.6 The Client understands that the terms and conditions applicable to this Agreement will at all times be subject to the provisions of the NCA, to the extent applicable;

19.7 The Client confirms that it fully understands and appreciates the risks and costs of the proposed Credit and the rights and obligations it has under this Agreement.

20. ACCOUNT FEES AND COSTS (ONLY APPLICABLE TO INCIDENTIAL CREDIT SALES)

20.1 Protech Software reserves the right to charge the Customer:

20.1.1. An initiation fee on opening the Customer’s account;

20.1.2. A default administration charge should the Customer’s account be in arrears or should the Client be in breach of the payment terms contained in this Agreement;

20.1.3. Any collection costs that Protech Software may incur in enforcing the Customer’s monetary obligations under this Agreement, including all collection charges, tracing fees and legal charges, to be calculated on the attorney client scale, alternatively in accordance with the costs allowed by the Attorney’s Act, Supreme Court Act, Magistrates Court Act and Debt Collectors Act to the extent that the NCA is applicable;

20.1.4 All costs associated with the handing over of the Customer’s account to a debt collection agency for recovery of arrear amounts;

20.1.5. A transaction based service fee as determined by Protech Software from time to time, which shall be debited to the Customer’s account for cheques issued by the Client and returned by the bank for whatever reason, or for debit orders that are not processed by the bank due to a lack of funds.

21. EARLY SETTLEMENT (ONLY APPLICABLE TO INCIDENTAL CREDIT SALES)

The Client may at any time settle its account early by paying to Protech Software the settlement amount owing at the date of settlement. The settlement amount consists of the unpaid principal debt (which amount is the balance owing excluding any other charges on the Customer’s statement) together with any other charges accrued up to the settlement date.

22. ACCOUNT TERMINATION BY CLIENT (ONLY APPLICABLE TO INCIDENTAL CREDIT SALES)

The Client may at any time terminate this Agreement by paying Protech Software the settlement amount owing on the Customer’s account at the date of termination and notifying Protech Software of the Customer’s intention to terminate the Agreement.

23. CONFIDENTIAL AND PERSONAL INFORMATION AND CREDIT BUREAUS (ONLY APPLICABLE TO INCIDENTAL CREDIT SALES)

23.1 The Client agrees that Protech Software may request and receive any confidential and consumer credit information from any credit bureau, other register or any third party at any time, including requesting a bureau score for credit vetting purposes, statistical modeling and management of the Customer’s Credit with Protech Software and the Client confirms that this consent also covers such information that has already been received by Protech Software ;

23.2. Protech Software shall share the above-mentioned confidential and consumer credit information (including information regarding non compliance with the Customer’s obligations under this Agreement) as well as any information regarding the Customer’s account, including the Customer’s application, opening and closing of the Customer’s account, with any other credit provider and credit bureau for, amongst other things, the purposes of such credit bureau sharing such information with other potential credit providers and credit bureau;

23.3 The credit bureau provides to credit providers a profile and possibly a score as to the Customer’s creditworthiness, based on the information Protech Software shares with such bureau;

23.4 The Customer’s confidential information and consumer credit information may be used by Protech Software for marketing and ancillary purposes on condition that the Client has authorised Protech Software to do so. The Client understands that it is at all times entitled to inform Protech Software of its intention to withdraw from this authorisation;

23.5 Protech Software may disclose the Customer’s confidential and consumer credit information as set out in above to various credit bureaus;

23.6 The Client may at any time contact any credit bureau and request that the Customer’s Consumer credit information be disclosed to it;

23.7 Any data regarding the Client to which Protech Software becomes entitled in terms of this Agreement may be made available to any prospective purchaser or transferred to any party should Protech Software either sell its business to such party or if such party obtains control over Protech Software.

24. THE NCA (ONLY APPLICABLE TO INCIDENTAL CREDIT SALES)

24.1. The Client agrees that the protection afforded to consumers in terms of the NCA shall not be afforded to it in the event that:

24.1.1.The Client is a juristic person whose asset value or annual turnover, together with the combined asset value or annual turnover of the Customer’s related juristic persons, at the Effective Date, equals or exceeds the threshold value determined by the Minister in terms of section 7(1) of the NCA;

24.1.2.The Client is the state or an organ of state; or

24.1.3. This Agreement is classified as a large agreement in terms of section 9(4) of the NCA, in terms of which the Client is a juristic person whose asset value or annual turnover is, at the Effective Date, below the threshold value determined by the Minister as referred to in clause 26.1.1 above.

25. INTELLECTUAL PROPERTY

The Software code, error corrections, enhancements, upgrades, or any other product created by Protech Software are and shall remain the exclusive property of Protech Software regardless of whether the Client, its employees, or agents may have contributed to the conception, joined in its development, or paid Protech Software for it.

In the unlikely event of Protech Software ceasing business activity for any reason whatsoever, all software code used in The Software, whether proprietary or not, will be provided to the Client on CD-ROM and with the accompanying documentation (which is in the source code).

26. CUSTOM DEVELOPED MODELS

In The event of Protech Software building specific software modules for the client, these modules will not be sold to any competitor of the client without the express permission of the client.

27. LIABILITY

The Software code, error corrections, enhancements, upgrades, or any other product created by Protech Software are and shall remain the exclusive property of Protech Software regardless of whether the Client, its employees, or agents may have contributed to the conception, joined in its development, or paid Protech Software for it.

In the unlikely event of Protech Software ceasing business activity for any reason whatsoever, all software code used in The Software, whether proprietary or not, will be provided to the Client on CD-ROM and with the accompanying documentation (which is in the source code).

28. CONFIDENTIAL INFORMATION

28.1 All discussions between the Client and Protech Software pertaining to a possible arrangement between them where personal, corporate, business and financial information (“confidential information”) relating to The Parties is disclosed will remain confidential to both Parties. The client and Protech Software undertake that such confidential information will be held by them in complete confidence and, without each other’s prior written consent, will not be disclosed, in whole or in part, to any other person nor used for any other purpose.

28.2 The Client and Protech Software shall not disclose the confidential information to any person, except to authorised officers and representatives of their organisations, including, but not limited to, advisors, associates, directors, auditors and attorneys, to whom it may be necessary to disclose the confidential information. In these instances, the relevant person will be informed of the contents of this confidentiality agreement.

29. GENERAL AND MISCELLANEOUS

29.1 Sole Record of Agreement

This Agreement constitutes the sole record of the agreement between the Parties. Neither Party shall be bound by any express or implied term, representation, warranty, promise nor the like not recorded in the Agreement.

29.2 No amendments except in writing

No addition to, variation of, or agreed or consensual cancellation of the Agreement (including the provisions of this clause shall be of any force or effect unless in writing and signed by or on behalf of the Parties. In particular, the Parties agree that any term or condition which may be contained on any order, written or verbal, and which is at variance with the terms of the Agreement, shall be of no force or effect unless incorporated in a document signed by both Parties and which has been prepared specifically for the purpose of varying the terms of the Agreement.

29.3 Waivers

No relaxation or indulgence, which any Party may grant to any other, shall constitute a waiver of the rights of that Party and shall not preclude that Party from exercising any rights which may have arisen in the past or which might arise in future.

29.4 Successors

The whole of this agreement shall bind and endure for the benefit of the successors in title, heirs, executors, administrators, trustees and the legal representatives of the parties or their respective estates, as the case may be.

29.4 The Client shall not encourage or entice or incite or persuade or induce any employee of Protech Software to terminate their employment with Protech Software; or furnish any advice or information to employee that may wish to compete with the Company. Should The Client breach this provision with Protech Software, it will lead to the institution of action against the Employee and The Client and to claim such damages as it may have suffered pursuant to or arising from such breach.

30. LIMITATION OF LIABILITY

In no event will Protech Software, or any of its Partner Institutes and suppliers, be liable, under any contract, negligence, strict liability, or other legal or equitable theory, even if Protech Software or its Partner Institute and suppliers were advised of the possibility of such damages as is stated below. These damages include but are not limited to: (i) PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (ii) LOST DATA OR LOST PROFITS; OR (iii) COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; OR (iv) CLAIMS BASED ON ANY ERROR, DEFECT OR NONCONFORMITY IN THE PRODUCTS OR SERVICE; OR (v) ALL OTHER CLAIMS NOT RELATED TO AN ERROR, DEFECT OR NONCONFORMITY IN THE PRODUCT.

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