Terms & Conditions

(Applicable to Equipment & Services)

1. DEFINITIONS
   1. “this Agreement” means these general trading terms;
   2. “Contract” means a contract concluded between the Customer and Mitas Corporation for the supply of Equipment and/or rendering of Services by Mitas Corporation to the Customer, which shall comprise of, inter alia, Mitas Corporation’s quotation to the Customer in respect of the Equipment or Services in question and the Customer’s acceptance of such quotation or a Maintenance Lease Schedule, Service Schedule or Loan Schedule entered into by the Customer and Mitas Corporation;
   3. “the Customer” means the Customer to whom the Equipment is supplied or the recipient of the Services rendered by Mitas Corporation;
   4. “Equipment” means Equipment, including component and replacement parts, supplied, leased or loaned by Mitas Corporation to the Customer;
   5. “Services” means the Services of whatever description, including without being limited to, repair services and preventative maintenance services, rendered by Mitas Corporation to the Customer;
   6. “Specifications” means any one or more of technical specifications, designs, measurements, instructions, itemised details, plans, drawings and programs that have been expressly accepted by Mitas Corporation in writing in respect of a Contract;
   7. “Mitas Corporation” includes any subsidiaries or associated companies associated to Mitas Corporation Solutions, Registration number 2017/092499/07, including its successors-in-title and assigns.
2. THIS AGREEMENT
   1. This Agreement shall govern the supply of Equipment and the rendering of Services by Mitas Corporation to the Customer and shall take precedence over any terms and conditions which may be contained in any of the Customer’s documentation, including its purchase orders, and will govern all transactions between Mitas Corporation and the Customer.
   2. If there is a conflict between this Agreement and the provisions contained in a Contract, the provisions in the Contract will prevail. If there is a conflict between this Agreement and any terms and conditions contained in Mitas Corporation’s other documentation, the provisions of this Agreement will prevail.
   3. Mitas Corporation’s acceptance of the Customer’s purchase order is expressly conditional upon the Customer agreeing to the provisions of this Agreement. When the Customer places a purchase order with Mitas Corporation, the Customer will be deemed to have accepted the provisions of this Agreement.
   4. Should Mitas Corporation so require, the Customer shall provide Mitas Corporation with such security as Mitas Corporation may in its sole discretion determine.
3. ORDERS
   1. The Customer’s order shall constitute an irrevocable offer to purchase or lease the Equipment or contract the Services in question from Mitas Corporation and shall be capable of acceptance by Mitas Corporation expressly by issuing a written acceptance of order, impliedly or by Mitas Corporation’s conduct.
   2. The Customer shall bear the risk of any errors or misunderstandings arising from oral orders.
   3. If Mitas Corporation, at its sole discretion, accepts the cancellation of an order, it reserves the right to charge the Customer for all the costs it has incurred up to the date of the cancellation at its prevailing prices.
4. PRICES
   1. Unless Mitas Corporation provides the Customer with a written quotation, which the Customer accepts within the period for which the quotation is valid, the price of, or rates in respect of, the Equipment and/or Services will be Mitas Corporation’s official list price/rates ruling at the date of delivery of the Equipment or the date of the rendering of the Services.
   2. Mitas Corporation reserves its right to vary any quoted price by adding thereto the increased costs to it of any Equipment or Services resulting from any adverse fluctuation in the rate of exchange, or increase in surcharge, government duty, freight or other costs of importation, or increase in the costs of material, transport, labour or insurance between the date of quotation and the date of delivery of the Equipment or rendering of the Services or for any change in the scope of supply subsequent to quotation.
   3. Unless specifically provided for in a Contract, prices for the Equipment do not include an allowance for installation and/or final on-site testing, training or adjustment or any mounting materials. The Customer shall be responsible for supplying and connecting all utilities, including potable water, clean air and electricity to the Equipment and, if applicable, computer data links.
5. PAYMENT
   1. The Customer shall effect payment to Mitas Corporation as stipulated in the applicable Contract. No discounts may be claimed or taken unless Mitas Corporation has agreed to such discount in writing and the Customer has effected payment within the payment period allowed for such discount.
   2. The Customer carries any risk associated with or arising from the method or manner elected to effect payment to Mitas Corporation. The Customer shall only be regarded as having effected payment to Mitas Corporation once the payment has been received in Mitas Corporation’s bank account and cleared by its bankers.
   3. If any payments due to Mitas Corporation are subject to withholding tax, the Customer shall pay Mitas Corporation an additional amount so that Mitas Corporation receives the full payment that is due to it. The Customer shall only be exempted from this provision if it provides Mitas Corporation with an exemption certificate or other documentation acceptable to the taxing authorities.
   4. Unless otherwise expressly agreed in writing, all payments are to be in South African Rand.
   5. The Customer shall not be entitled, for any cause whatsoever, to withhold, deduct from or defer any amount due by it to Mitas Corporation. All payments shall be free of exchange and set off.
   6. Mitas Corporation may appropriate all payments from the Customer to any such outstanding amounts as it deems fit.
   7. Mitas Corporation reserves the right to levy interest at the maximum rate permitted in law on all overdue amounts from time to time.
6. DELIVERY OF EQUIPMENT AND COMPLETION OF SERVICES
   1. The date of delivery of the Equipment will be deemed to be the date when the Equipment is delivered to the Customer’s nominated delivery address or the date on which Mitas Corporation notifies the Customer that the Equipment is available for collection. Any third party who collects the Equipment from Mitas Corporation will be deemed to be the Customer’s agent. Mitas Corporation may effect delivery in one or more instalments and each instalment shall be treated as a separate transaction.
   2. The date of completion of the Services will be deemed to be the date on which the Equipment to which the Services relate is ready to be used. The Customer undertakes to grant Mitas Corporation access to the site/s where the Services are to be rendered and shall comply with Mitas Corporation’s reasonable requirements for the rendering of the Services.
   3. The Customer warrants that the signatory to any tax invoice, delivery note or any other documentation of Mitas Corporation made out in the name of the Customer is duly authorised to bind the Customer in relation to the transaction and shall also constitute prima facie proof of the proper delivery of the Equipment or rendering of the Services to the Customer and the fact that the Customer has inspected the Equipment and acknowledged it to be in good order and condition, free from defects and ready for use in every respect.
   4. Although Mitas Corporation will use its best efforts to meet indicated delivery dates, time shall not be of the essence in respect of any Contract. The Customer shall not be entitled to cancel any order or Contract by reason of any delay and Mitas Corporation shall not be liable for any damages for failure to timeously effect delivery of the Equipment or to complete the Services by a specific date for any reason
   5. In the event of any delay in delivery caused by the Customer, Mitas Corporation will store and handle the Equipment in question at the Customer’s risk and shall invoice the Customer for the unpaid portion of the Contract price. Mitas Corporation shall also charge the Customer a monthly storage and extra handling charge of 5% (five percent) of the total Contract price per month, or any part thereof, which charge shall be payable on demand.
7. DISCREPANCIES
   1. Unless the Customer notifies Mitas Corporation in writing within 7 (seven) days of the date of delivery that the Equipment delivered is defective, damaged or not in accordance with the Contract, Mitas Corporation shall not be liable for any of the aforesaid discrepancies, provided that the Customer’s notification shall have no probative value.
   2. Once Mitas Corporation has satisfied itself of the validity of the Customer’s complaint, Mitas Corporation will determine, in its absolute discretion, the manner in which it resolves such complaint.
8. SPECIFICATIONS
   1. Mitas Corporation’s obligations will be to supply the Equipment and render the Services in accordance with the Specifications stipulated in the Contract.
   2. Notwithstanding the above, Mitas Corporation shall not be responsible for any mounting materials or materials handling equipment or any other equipment to which the Equipment is to be attached or into which the Equipment is to be incorporated as may have been provided, prepared or specified by or on behalf of the Customer.
   3. If any Equipment or Services is/are to be supplied in accordance with Specifications furnished by the Customer, the Customer shall not have any claim of any nature whatsoever against Mitas Corporation for any loss or damage sustained by the Customer or any third party as a result of any error, discrepancy or defect in those Specifications or if the Equipment in question is not suitable for the purpose for which it is required, whether that purpose was known to Mitas Corporation or not.
9. VARIATIONS
   1. Mitas Corporation shall supply the Equipment and/or render the Services strictly in accordance with the terms of the Contract.
   2. In addition to clause 0 (PRICES) above, should the Customer require variations to the Equipment or the Services or should Mitas Corporation be hindered, delayed or prevented from supplying the Equipment or rendering the Services or be exposed to extra costs due to extensions of or omissions from any order/Contract, deviations from the Specifications, late, defective or non-receipt of information or by any other act, default or omission by or on behalf of the Customer, Mitas Corporation shall be entitled to an appropriate variation to the price/rates relating to the Equipment or Services in question or any other obligation of Mitas Corporation.
10. RISK AND OWNERSHIP
    1. Risk in the Equipment will pass to the Customer on the date of delivery.
    2. Ownership in the Equipment that is :-
       1. purchased by the Customer shall remain vested in Mitas Corporation until the full purchase price for such Equipment is paid to Mitas Corporation;
       2. leased by the Customer shall at all times remain vested in Mitas Corporation.
    3. If the Customer delays or fails to accept delivery of the Equipment in any manner, the risk in such Equipment shall pass to the Customer as soon as Mitas Corporation attempts to deliver same to the Customer.
    4. While :-
       1. any amount is owed by the Customer to Mitas Corporation in respect of any Equipment purchased by the Customer;
       2. Equipment that is leased remains in the possession or control of the Customer, the Customer shall be obliged to keep the Equipment concerned free of any lien, hypothec, encumbrance and/or attachment and shall ensure that the Equipment does not accede to any property, whether movable or immovable
    5. The Customer shall take all such steps as may be necessary to notify interested third parties and inform the owner / landlord of the premises at which the Equipment is kept of Mitas Corporation’s ownership of such Equipment.
    6. The Customer shall fully insure the Equipment at its replacement value all risks until it has :-
       1. paid the full purchase price to Mitas Corporation in respect of Equipment it has purchased;
       2. returned the Equipment to Mitas Corporation. All benefits in terms of such insurance policy shall be deemed to be ceded to Mitas Corporation. The Customer’s failure to comply with its obligation under this clause shall not, in any manner, vitiate its own liability in the event that Equipment is lost, damaged or stolen after delivery.
    7. Mitas Corporation shall have the right to recover the Equipment from the Customer in the event of default by the Customer.
11. LIEN
    Unless Mitas Corporation has received full payment in respect of the Services, it shall be entitled to exercise a lien over the Equipment in respect of which the Services were rendered or any other property of the Customer in its possession, irrespective of whether or not the Customer has paid Mitas Corporation for the Equipment concerned, until the Customer settles all amounts due in respect of the Services.
12. RETURNS
    1. Equipment sold by Mitas Corporation is sold voetstoots and is not returnable save with the written consent of Mitas Corporation.
    2. Should Mitas Corporation in its absolute discretion elect to accept the return of any Equipment, it will furnish the Customer with written notification and the Equipment must be immediately returned to Mitas Corporation, at the Customer’s cost, with the corresponding invoice and it must be undamaged and saleable. The risk in the Equipment shall remain with the Customer until the Equipment is received by Mitas Corporation.
    3. Mitas Corporation reserves the right to levy a handling charge of 15% (fifteen percent) of the Contract price in respect of any such returned Equipment.
13. WARRANTIES
    1. Standard Telesis Equipment – subject to the limitations set out herein, is warranted against defects in workmanship and materials for a period of 2 (two) years from date of original shipment by Telesis. All IdentiPlate, Benchmark, and ProScript Laser Products are warranted against defects in workmanship and materials for a period of 1 (one) year from date of original shipment by Telesis.
    2. InfoSight Standard Equipment – subject to the limitations set out herein, is warranted against defects in workmanship and materials for a period of 1 (one) year from date of original shipment by InfoSight.
    3. Epilogue Standard Equipment – subject to the limitations set out herein, is warranted against defects in workmanship and materials for a period of 1 (one) year from date of original shipment by Epilogue.
    4. Custom Engineered Systems – subject to the limitations set out herein, custom engineered Equipment manufactured by Telesis, InfoSight or Epilogue is warranted against defects in workmanship and material for a period of 1 (one) year from the date of the original shipment by such manufacturer.
    5. Should any defects be found and reported during the warranty periods referred to in clauses 13.1, 13.2, 13.3 and 13.4 above, Mitas Corporation will, at the option of the manufacturer, issue a credit for, or correct such deficiencies by furnishing the necessary replacement parts, provided that the Customer agrees to pay all of Mitas Corporation’s time and expenses, including on-site service time, captive time and travel to and from the location of the Equipment and Mitas Corporation’s premises.
    6. Excluded from the scope of the aforesaid warranties are any components deemed by the manufacturers or Mitas Corporation to be consumables, i.e. parts that due to their intended use will naturally degrade and not be usable over an extended period of time. Such items include, but are not limited to, impact pins, pin cartridge assemblies, push buttons, laser tubes, lamps, belts and solenoid valves.
    7. Software – the manufacturer warrants that the program discs (or other media, on which the Software is recorded) and the documentation provided will be free of defects in materials and workmanship under normal use and that the Software will be free from errors in program logic, clerical program preparation and transcription and will execute accordingly when installed in accordance with the manufacturer’s instructions. This warranty shall not apply when the Software is operated concurrently with other software programs not supplied by the manufacturer or if defects occur as a result of interaction with software products not supplied by the manufacturer. The warranty period shall 1 (one) year from date of original shipment by the manufacturer. If the Software does not meet the above warranty and the Customer promptly notifies Mitas Corporation in writing and provides the description of the error and complete information about the manner of its discovery, the manufacturer will correct the error (at its sole option) by:- (a) modifying the erroneous program; (b) making available to the Customer instructions for modifying any erroneous program; or (c) making available at the manufacturer’s plant necessary corrected or replacement programs.
    8. Repair Services – Mitas Corporation warrants that any parts used in respect of the Services will be subject to the manufacturer’s warranties. The repair Services rendered during the Equipment’s warranty period will be free of any defects in workmanship for a period of 1 (one) year from completion of the Services. The repair Services rendered outside of the Equipment’s warranty period shall not carry any warranty in respect of workmanship.
    9. In the event that any seals that Mitas Corporation attaches to the Equipment are broken or tampered with, the Customer shall have no claim under the aforesaid warranties even if a defect, as contemplated above, occurs within the warranty period.
    10. The aforesaid warranties shall not apply to any Equipment where the installation, calibration or servicing of such Equipment is made by any party other than Mitas Corporation or where the Equipment is operated above rated load capacity, or subjected to accident, alteration, misuse, abuse or failure on the part of the Customer to ensure proper storage, operation and maintenance of the Equipment.
    11. Mitas Corporation may, at its option, use reconditioned replacement parts when performing warranty services.
    12. SAVE FOR THE ABOVE, MITAS CORPORATION GIVES NO WARRANTIES OF WHATSOEVER NATURE, WHETHER EXPRESS OR IMPLIED (INCLUDING WARRANTIES AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), IN RESPECT OF THE EQUIPMENT OR SERVICES AND THE ABOVE SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES OF THE CUSTOMER IN RESPECT OF ANY BREACH OF THE WARRANTIES RECORDED IN THIS CLAUSE 0.
14. LIMITATION OF LIABILITY AND INDEMNITY
    1. IN NO CIRCUMSTANCES SHALL MITAS CORPORATION BE LIABLE FOR ANY TYPE OF SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, DELICT (INCLUDING NEGLIGENCE) OR OTHERWISE WHICH MAY BE SUFFERED BY THE CUSTOMER OR ANY THIRD PARTY AS A RESULT OF OR IN CONNECTION WITH THE EQUIPMENT AND/OR SERVICES OR ANY TRANSACTION CONTEMPLATED HEREIN; such damages shall include but not be limited to loss of profits or revenue, loss of data, loss of use of the Software, loss of use of the Equipment or associated Equipment, the cost of substitute equipment, facilities downtime costs or claims of the Customer’s clients or contractors of such damages.
    2. ANY LIABILITY OF MITAS CORPORATION FOR DIRECT LOSS OR DAMAGE ARISING FROM A BREACH OF A CONTRACT OR THIS AGREEMENT SHALL NOT EXCEED THE TOTAL CONTRACT PRICE/RATES PAID OR DUE TO BE PAID BY THE CUSTOMER FOR THE EQUIPMENT OR SERVICES THAT FORM THE SUBJECT MATTER OF SUCH CLAIM.
    3. IN ADDITION TO THE ABOVE, THE CUSTOMER HEREBY INDEMNIFIES MITAS CORPORATION FOR AND HOLDS IT HARMLESS AGAINST ANY CLAIM, DAMAGE, LOSS, COST OR EXPENSE, OF WHATEVER NATURE, MADE AGAINST MITAS CORPORATION BY ANY THIRD PARTY ARISING FROM OR ASSOCIATED WITH THE EQUIPMENT OR THE SERVICES, THE CUSTOMER’S USE, INSTALLATION, OPERATION OR STORAGE OF THE EQUIPMENT, ANY THIRD PARTY’S USE OF THE EQUIPMENT OR ANY OTHER MATTER FOR WHICH MITAS CORPORATION WOULD NOT BE LIABLE TO THE CUSTOMER UNDER THIS AGREEMENT.
15. BREACH
    1. If the Customer fails to pay any amount on its due date, or breaches any provision of this Agreement or of a Contract, or suffers any civil judgment being taken or entered against it, or commits an act of insolvency, or is placed under sequestration, liquidation or judicial management (whether provisional or final, voluntary or compulsory), or commences business rescue proceedings, or makes or attempts to make any general offer of compromise with any of its creditors, Mitas Corporation shall, without prejudice to any other remedies that it has available to it, be entitled to:-
       1. suspend or cease performance of its obligations to the Customer until the Customer’s breach has been remedied; and/or
       2. summarily cancel a Contract; and/or
       3. repossess any Equipment which has not been paid for; and/or
       4. exercise its lien over any Equipment or any of the Customer’s property in its possession or under its control; and/or
       5. summarily cancel this Agreement or claim specific performance of all of the Customer’s obligations whether or not such obligations have fallen due for performance, in all events without prejudice to Mitas Corporation’s right to claim damages.
    2. If Mitas Corporation breaches any provision of this Agreement and fails to remedy such breach within 7 (seven) days after receiving written notice from the Customer to remedy such breach, the Customer shall, without prejudice to any other remedies that it has available to it, be entitled to :-
       1. summarily cancel a Contract; and/or
       2. summarily cancel this Agreement; or
       3. claim specific performance of all of Mitas Corporation’s obligations, in all events without prejudice to Customer’s right to claim damages.
16. FORCE MAJEURE
    1. Mitas Corporation will not be liable to the Customer for failing to perform its obligations in terms of this Agreement as a result of an act of God or any cause beyond its control.
    2. If the force majeure event continues for a period longer than 90 (ninety) days, either party may terminate the Customer’s outstanding orders in writing and the Customer shall pay Mitas Corporation for the Services rendered and Equipment delivered prior to such termination and all reasonable expenses incurred by Mitas Corporation prior to such termination.
17. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL INFORMATION
    1. Mitas Corporation or its suppliers shall retain ownership of their confidential information and all of the intellectual property rights in respect of the Equipment, whether same have been registered or not.
    2. Without limiting the above, the Customer shall not, directly or indirectly and whether for reward or not, at any time use, exploit, reproduce or disclose any of the confidential information of Mitas Corporation or its suppliers as to the methods of manufacture, plans, concept drawings, price lists, documents or any other information relating to the Equipment or Services to a third party. The Customer hereby indemnifies Mitas Corporation and/or its suppliers against any loss suffered by that party as a result of the Customer breaching this clause.
    3. Mitas Corporation and its suppliers make no representations as to whether the Equipment is free of the rightful claim of any third person by way of infringement or similar claims and disclaim any warranty against infringement or similar claims with respect to the Equipment.
18. CESSION AND ASSIGNMENT
    1. The Customer shall not be entitled to cede its rights or assign its obligations under this Agreement without Mitas Corporation’s express prior written consent.
    2. Mitas Corporation shall be entitled to cede its rights or assign its obligations under this Agreement and such cessionary shall be entitled to enforce its rights hereunder and in terms of any security furnished by the Customer to Mitas Corporation against the Customer and/or the party that provided such security in respect of the Equipment and/or Services supplied and/or rendered by Mitas Corporation and the Equipment and/or Services supplied and/or rendered by the cessionary to the Customer.
    3. Mitas Corporation may subcontract its obligations hereunder without the Customer’s consent.
19. LEGAL PROVISIONS
    1. This Agreement and all transactions between the Customer and Mitas Corporation shall be governed by and decided upon in accordance with the laws of the Republic of South Africa.
    2. Mitas Corporation shall, at its option, be entitled to institute action in the Magistrate’s Court, notwithstanding that the amount of its claim exceeds the jurisdiction of such Court. This provision shall not preclude Mitas Corporation from instituting action against the Customer in any other competent court with jurisdiction.
    3. A certificate issued by any member or manager of Mitas Corporation, whose authority, appointment and signature it shall not be necessary to prove, that purports to certify any indebtedness of the Customer to Mitas Corporation, delivery of the Equipment to the Customer, rendering of the Services to the Customer or any other fact shall constitute prima facie proof of such indebtedness or delivery or rendering of Services or any other fact.
    4. The Customer shall be liable for Mitas Corporation’s legal fees in the event of Mitas Corporation enforcing or defending its rights hereunder on an attorney and own client scale, including Counsel’s fees on brief, tracing agent’s fees and collection charges.
20. DOMICILIUM
    1. The parties’ physical addresses as set out in a Contract will constitute their chosen domicilium citandi et executandi.
    2. A party may change its domicilium by furnishing the other party with 7 (seven) days written notice of its new physical address.
    3. Any notice to a party’s domicilium shall be deemed to have been received on the 7th (seventh) day after the date of posting if sent by registered post or on the date of delivery.
    4. Notwithstanding the above, a notice actually received by a party, whether or not at its domicilium, shall be deemed to have been properly served on that party.
    5. All notices in terms of this Agreement shall be in writing.
21. GENERAL
    1. This Agreement together with any Contracts constitute the entire agreement between the parties relating to the subject matter hereof. No party shall be entitled to rely upon any term, warranty, guarantee, condition or representation, unless it is contained herein or in a Contract.
    2. No amendment of this Agreement and no extension of time, waiver or relaxation of any of the provisions of this Agreement shall be binding, unless recorded in a single document signed by both of the parties.
    3. No relaxation or indulgence shall prejudice or be deemed to be a waiver of any of Mitas Corporation’s rights hereunder.
    4. All words and phrases importing any one gender include each of the other genders for the purposes hereof and the singular includes the plural and vice versa. Reference to natural persons shall include artificial persons.
    5. Each provision of this Agreement is severable, the one from the other. If any provision is found to be defective, unlawful or unenforceable for any reason, the remaining provisions shall continue to be of full force and effect.
    6. The rule of construction that this Agreement be interpreted against the party responsible for drafting this document shall not apply.
    7. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which by their nature are intended to survive the expiry of this Agreement.
22. DISCLOSURE OF INFORMATION
    1. The Customer hereby consents and grants authority to Mitas Corporation to conduct credit checks, searches and the like with any credit agency or party which Mitas Corporation may at its discretion consider expedient or necessary, inter alia, for the purpose of ascertaining the credit worthiness of the Customer or in order to trace the Customer or any of its assets.
    2. Mitas Corporation shall be entitled to record any adverse credit report with any agency or person. The Customer acknowledges that the application for and existence of any account with Mitas Corporation may be recorded by credit agencies and details of the conduct of the account may be given to and duly recorded by and shared with other persons for various reasons.
    3. The Customer hereby waives any claim and indemnifies and holds Mitas Corporation harmless against any claim for any nature and howsoever arising from the aforesaid instances.