TERMS_AND_CONDITIONS

TERMS_AND
_CONDITIONS

  1. Definitions
    1. In these terms and conditions:
      1. “The goods” means any goods, including software delivered electronically, and services as indicated on any forms, price lists, quotations, orders or invoices of Tarsus Distribution (Pty) Limited (“Tarsus“) or supplied by Tarsus.
      2. “Customer” means the legal or natural person purchasing any goods from Tarsus or supplied any goods by Tarsus.
      3. “ESD” means Electronic Software Delivery.
      4. “Vis Major” means any event that is outside of Tarsus’ reasonable control including but not limited to: any national state of disaster or other circumstances impacting the availability of the goods as required by Tarsus and within the times required by Tarsus, or preventing the free supply of goods or free movement of people or goods; pandemic; war (declared or not); terrorism; robbery or theft; hi-jacking; civil unrest; loss of warehousing; fire; explosion; strikes; lockouts; international restrictions; any actions of government (foreign or local); the inability of the vendor / manufacturer to meet an order of Tarsus within usual and / or required time frames for any reason; or the inability or failure of the vendor / manufacturer to supply or deliver the goods to Tarsus in South Africa within usual and / or required time frames for any reason.
  2. Prices and Quotations
    1. Where no quote is issued, the price of the goods shall be the price as set out in the price lists published by Tarsus Distribution (Pty) Limited (“Tarsus“) at the time that the order is accepted or, where there is no published price, then the usual price charged by Tarsus. Tarsus reserves the right to change prices and price lists from time to time.
    2. Prices quoted are valid for a period of twenty-four (24) hours from date of quote, and are subject to the conditions below:
      1. The terms and conditions as set out in this agreement shall apply, to the exclusion of all of the Customers’ terms, in respect of all transactions concluded between Tarsus and the Customer and shall apply to all quotations issued by and all orders processed by Tarsus and to the supply, sale and delivery of all goods or services by Tarsus, including delivery by ESD.
      2. Foreign Exchange: prices quoted are subject to foreign currency fluctuations.
      3. In the event that the Rand fluctuates against the applicable foreign currency from the date of the quotation and the date on which the Customer’s Purchase Order is accepted by Tarsus, Tarsus reserves the right to re-quote and Tarsus reserves the right to increase the price of such goods in accordance with the Exchange Rate increase.
      4. In the event of the shipping, airfreight or other transportation costs increasing between the date of the quotation and the date on which the Customer’s Purchase Order is accepted by Tarsus, Tarsus reserves the right to increase the price of such goods in accordance with the cost increase.
      5. In the event of a manufacturer’s price being increased between the date of the quotation and the date on which the Customer’s Purchase Order is accepted by Tarsus, Tarsus reserves the right to increase the price of such goods in accordance with the manufacturer’s price increase.
      6. A purchase order or order placed against a quotation is deemed to be and shall constitute acceptance of that quote. Tarsus may accept any orders received from the Customer or their duly appointed specified users on Tarsus Distribution’s online Portal in respect of goods constituting software.
      7. Tarsus reserves the right to invoice Customers for goods ordered on Tarsus Distribution’s online Portal and those which were procured upon written request either via a non-cancellable irrevocable order, official purchase order or an email instruction received.
      8. Orders for software placed on Tarsus Distribution’s online Portal by the Customers duly appointed specified users shall bind the Customer and be orders of the Customer.
      9. Tarsus reserves the right not to accept any order.
      10. Acceptance by Tarsus of any order and all delivery obligations are always subject to the availability of the goods.
      11. All goods shall remain the property of Tarsus until paid for in full and are sold only with the original equipment manufacturers warranty. Tarsus gives no additional warranty on goods save to the extent expressly provided in any South African law. The Customer shall be responsible for checking specifications of goods and that they are fit for purpose.
      12. Errors and Omissions are exempted and shall not bind Tarsus. Tarsus reserves the right, at any time, to correct any error or omission.
      13. Unless otherwise stated in the quote, prices exclude VAT.
  3. Payment and Invoices
    1. The Customer shall pay the amount on the tax invoice. Payment is due immediately save for credit approved Customers, in which event payment is due within 30 calendar days of date of the statement.
    2. Where the Customer uses the postal (or any third party or delivery) service for any purpose, such service shall be deemed to be the agent of the Customer. Likewise, where the Customer uses Internet banking, the bank shall be deemed to be the agent of the Customer.
    3. The Customer hereby consents and agrees that Tarsus may issue tax invoices, credit notes and debit notes (collectively “Invoices”) to the Customer in electronic form (this includes Emails). Tarsus may issue separate invoices for each delivery.The Customer agrees to retain the invoices in encrypted and readable form for at least 5 years.
    4. The Customer shall not for any reason withhold payment or make set offs or deductions from any payment due by it. No extension of payment terms will be effective unless reduced to writing and signed by a director of Tarsus.
    5. Tarsus shall have the right to suspend deliveries and to exercise its rights in terms of clause 8 if any amount due by the Customer is unpaid.
    6. If any amount is not settled in full on due date Tarsus shall be entitled, without prejudice to any of its rights, to:
      1. immediately institute action against the Customer and/or
      2. cancel the sale and / or any outstanding orders or deliveries, and in all cases claim damages.
    7. Should any amount not be paid by the Customer on due date, the full outstanding amount in respect of all purchases by the Customer shall automatically become due and payable, and the Customer shall be liable to pay interest in respect of amounts unpaid at the compound rate of a 5% (five per cent) above the prime overdraft rate of Nedcor Bank Limited on all overdue amounts from due date until date of payment, calculated and payable monthly in advance. A certificate from Nedcor Bank Limited, signed by any manager of such bank, whose authority and capacity it shall not be necessary to prove, shall be prima facie proof of the interest rate charged.
    8. Tarsus will not give notice of a change of banking details other that by way of a letter, signed in manuscript (not electronically) by a director of Tarsus. The Customer is warned and agrees not to act on any other purported notice of a change of banking details and does so at its risk.
  4. Credit Facilities
    1. Tarsus shall have an unfettered discretion to grant, increase, decrease or withdraw credit facilities to the Customer and to determine the nature and extent thereof from time to time without prior consultation with the customer.
  5. Orders
    1. The Customer hereby confirms that the goods and services on the tax invoice issued duly represent the goods and services ordered by the Customer (or its duly appointed specified users in the case of software) at the prices agreed to by the Customer and where performance/delivery has already taken place that the services and goods were inspected and that the Customer is satisfied that these conform in all respects to the quantity ordered and were received in good order and condition.
    2. Tarsus is entitled to accept written or oral orders. All such orders and any variations to orders will be binding, subject to these standard terms and conditions and may not be varied or cancelled without prior written consent from Tarsus. Tarsus will not be responsible for any errors or misunderstandings occasioned by the Customer’s failure to make the order in writing.
    3. Orders shall constitute irrevocable offers to purchase the goods in question at the usual prices of Tarsus as at the date when the Customer places the order of the goods, subject to clause 2 above, and shall be capable of acceptance by Tarsus by the written acceptance of the purchase order or delivery of the goods.
    4. Tarsus may at its discretion cancel any order, accepted order or sale at any time and without claim from the Customer (other than return of payments already made for the goods), if: the exchange rate fluctuates by more than 3% between the date of acceptance of the order and the date that the goods are received by Tarsus from the vendor / manufacturer; or where any Vis Major event endures or is likely to endure for longer than 10 calendar days.
    5. The Customer shall provide Tarsus with an order number when placing an order.
    6. Any order marked for “Collections” and not collected within 3 days of placing the order may at Tarsus’s election be cancelled and the goods put back into stock for re-sale.
    7. Tarsus shall not be obliged to accept any order and may cancel an order or resultant sale, at any time, without claim from the Customer, if the goods cannot be obtained at usual prices from the vendor for any reason.
    8. The Customer shall be solely responsible for ensuring that all goods ordered from and / or reflected in any quote issued by Tarsus is correct, meets the end users’ requirements and will be fit for purpose. Tarsus shall not be liable for errors by the Customer or their duly appointed specified users in selecting or ordering any goods.
    9. Terms added by Tarsus to any quote shall be additional to those contained herein and the terms herein shall, unless otherwise expressly stated in the quote, prevail to the extent of any conflict.
    10. Tarsus will not be held responsible for any misuse or fraud by the Customer or its duly appointed specified users of the Tarsus Distribution Portal or any software purchased and delivered.
    11. Tarsus may require the customer to register users on the Tarsus Distribution Portal as a condition of use. The Customer shall be liable for and bound by all orders placed using its log on credentials or account. The Customer shall be responsible for managing its users and for removing users that are no longer authorised by the Customer to place orders on the Customers behalf.
  6. Delivery
    1. Any delivery note (copy or original) signed by the Customer and/or its authorised representative and/or its nominated agent and held by Tarsus, shall be prima facie proof that delivery was made to the Customer.
    2. Tarsus shall be entitled where necessary or with the prior consent of the Customer, which consent shall not be unreasonably withheld, to split the delivery of the goods ordered in the quantities and on the dates it decides.
    3. In the event of the Customer choosing to engage its own third party to transport the goods, the Customer indemnifies Tarsus against any claims of any nature whatsoever that may arise from such an agreement with the third party or from any act or omission of the third party. Receipt of the goods by the third party shall constitute delivery to the Customer and the third party shall be the agent of the Customer.
    4. Tarsus is entitled to engage a third party(ies) on its behalf to attend to the logistics, storage and transport all goods purchased by the Customer to the delivery address stipulated by the Customer.
    5. Should the Customer wish to receive delivery of the goods by a more expensive method of transportation than that normally used by Tarsus, the Customer shall make such request in writing and, in the event that Tarsus agrees to arrange such special delivery the additional charges shall be debited to the Customer’s account and shall be payable by the Customer.
    6. Tarsus does not guarantee that the goods will be dispatched or delivered on any particular date and time, and the Customer shall have no claim against Tarsus in respect of any loss occasioned by any delay in dispatch or delivery of any goods ordered and/or services rendered, nor may the Customer cancel any order by reason of such delay.
    7. All obligations of Tarsus to deliver or supply any goods shall be suspended during a Vis Major event or whilst the Customer is in material breach of any obligation, including to pay any amount, to Tarsus.
    8. Short deliveries must not be accepted, the short delivery must be recorded by the Customer on the delivery note and all the goods must be given to the driver of the delivery vehicle for return to Tarsus.
    9. Goods received in a damaged condition must either be rejected or accepted and a note of the item and type of damage made on the front of the delivery note. Where the goods are rejected, the goods must be returned as per 6.7, above.
    10. All goods taken on an evaluation, approval, demonstration basis or all goods taken on consignment by the Customer are deemed sold to the Customer at Tarsus’s usual price if not returned to Tarsus inperfect condition in the original packaging and with all accessories and manuals intact within 5 (five) working days of delivery thereof to the Customer.
    11. Tarsus reserves the right to stipulate minimum quantities and values of goods that can be ordered and to charge delivery charges, as and when necessary.
    12. Goods constituting software may be delivered by way of ESD to the Customer.ESD may be by way of email, use of the Tarsus Distribution Portal, other electronic download or provision of a software activation code, any of which shall constitute valid delivery of the goods.Tarsus may monitor the ESD process. Acceptance of the vendors licence shall be a condition of any download or use or software.
  7. Ownership and Risk
    1. All risk in and to goods sold by Tarsus to the Customer shall pass to the Customer on delivery thereof.
    2. Ownership in all goods shall remain vested in Tarsus until the full purchase price has been paid.
    3. Goods in the possession of the Customer bearing Tarsus’s name, trademark, labels and/or serial no. are deemed to be those for which payment has not yet been made, and should any breach of these terms occur, may be re-possessed by Tarsus and the Customer consents in such circumstances to the grant of a Court order entitling Tarsus to take possession of such goods. The Customer shall fully insure the goods purchased from Tarsus against loss or damage until the Customer has paid the full purchase price for such goods. Pending payment to Tarsus for goods purchased, all benefits in terms of the insurance policy relating to the insurance of such goods shall be and is hereby ceded to Tarsus.
    4. The Customer shall inform the landlord of the premises at which the goods are kept that such goods are the sole and absolute property of Tarsus until such time as the Customer has paid the full purchase price to Tarsus.
  8. Breach of Contract and Limitation
    1. In the event of a breach of these terms and conditions by the Customer, or if the Customer is sequestrated or placed into liquidation or judicial management or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy a judgment granted against it within 7 (seven) days of the date of judgment or changes the structure of its ownership, Tarsus shall, without prejudice to any further rights herein or at common law, be entitled to:
      1. Claim specific performance or cancel this agreement and claim immediate payment of all outstanding amounts and interest as well as any damages suffered; and
      2. Take possession of all goods that have not been paid for in full and the Customer consents in such circumstances to the grant of a Court order entitling Tarsus to take possession of such goods;
    2. All obligations of Tarsus shall be suspended without claim from the Customer where the Customer is in breach of any obligation to Tarsus.
    3. No claim, from Customer, under these terms and conditions will arise unless the Customer has, within 30 (thirty) days of the later of the date on which the alleged breach or defect occurred, or the date on which the Customer should reasonably have been aware of the alleged breach or defect, given Tarsus 30 (thirty) days written notice to rectify any defect or breach of contract.
    4. Neither party shall be liable to the other for any indirect, consequential or special damages howsoever caused or arising.
    5. The Customer agrees that neither Tarsus nor any of its employees will be liable for any negligent or innocent misrepresentations made to the Customer, nor shall the Customer be entitled to resile from these terms and conditions on those grounds.
  9. Legal Proceedings
    1. These terms and conditions shall be governed and construed under and in accordance with the laws of the Republic of South Africa.
    2. Tarsus shall, at its option and notwithstanding that the amount of its claim or the nature of the relief sought exceeds the jurisdiction of the Magistrate’s Court be entitled to institute action out of such court.
    3. A certificate issued and signed by any director or manager of Tarsus, whose authority need not be proved, in respect of any indebtedness of the Customer to Tarsus or in respect of any other fact, including but without limiting the generality of the aforegoing, the fact that such goods were sold and delivered, shall be prima facie proof of the Customer’s indebtedness to Tarsus and prima facie proof of delivery of the goods in terms of this contract.
    4. Any print out of computer evidence tendered by Tarsus shall be admissible evidence and the Customer shall not be entitled to object to the admissibility of such evidence purely on the grounds that such evidence is computer evidence.
    5. The Customer’s chosen domicilium address and email address in the reseller application form shall be recognised as the Customer’s domicilium for all purposes in terms of this contract whether in respect of the serving of any court process, notices that payment of any amount is due or communications of whatever nature. Any service that comes to the attention of a director of a party shall be effective from such date regardless of the address or method of delivery.
    6. In the event of the Customer breaching any of its obligations and/or failing to timeously make payment of any amount to Tarsus, the Customer agrees to pay, and shall be liable to pay, all legal costs incurred by Tarsus in enforcing its rights in terms of these terms and conditions on the attorney/own client scale including collection charges, tracing agent’s fees, air fares and export fees.
    7. Any document will be deemed duly received by the Customer within:
      1. 24 (twenty-four) hours of being emailed to the Customer’s chosen domicilium email address; or
      2. on being delivered by hand to the Customer or any director or member of the Customer.
  10. Arbitartion
    1. Tarsus may elect at its sole discretion, to refer any dispute arising from or in connection with this contract to arbitration which arbitration award shall be final and binding on the Customer and Tarsus.
    2. The arbitrator will be a person agreed upon by the parties or failing agreement, appointed by the Arbitration Foundation of Southern Africa (AFSA), who shall then finally resolve the dispute or issue in accordance with the Commercial Rules of the Arbitration Foundation of SA. Tarsus may elect not to have the arbitration administered by AFSA.
    3. The arbitration shall be held at Sandton.
    4. The arbitrator shall give a reasoned written judgement and may award (and tax) costs on the High Court tariff.
    5. There shall be a right of appeal where the quantum exceeds two million rand.
    6. The provisions of this clause shall not preclude either party from access to an appropriate court of law for:
      1. interim relief in the form of an interdict, mandamus, or order for specific performance, pending the outcome of an arbitration in terms hereof; or
      2. any other form of relief on the basis of facts which are not disputed, provided that if a dispute arises in the course of the proceedings and Tarsus elects to refer the dispute to arbitration, they shall be stayed pending an arbitration on the dispute in terms hereof.
  11. Negotiable Instruments
    1. Acceptance of a negotiable instrument from the Customer shall not be deemed to be a waiver of Tarsus’ rights under this contract. In relation to cheques furnished by the Customer to Tarsus, the Customer waives its right to insist on notice of dishonour or protest being given to it on the event that the cheque is dishonoured.
  12. Returned Goods
    1. Whilst Tarsus is under no obligation to accept the return of goods, the Customer may apply to Tarsus for permission to return goods and if written permission is given:
      1. the Customer may return any defective goods to the premises of Tarsus or its nominee at the Customer’s own cost;
      2. any item delivered to Tarsus will form the object of a pledge in favour of Tarsus for present and past debts of the Customer to Tarsus and Tarsus will be entitled to retain such pledge at a value determined as follows:
        1. the difference between the selling price and the value of the goods at the time that the debt became due;
        2. the value of any repossessed goods or retained pledge goods will be deemed to be the value placed on them by any sworn valuator after such repossession and such valuator will be prima facie proof of the value.
      3. Tarsus reserves the right to charge a handling fee on goods returned.
      4. The credit control department must be notified of the relevant invoice, packing slip and batch numbers before any claim will be considered.
    2. Tarsus will follow the policies on any returned and/or faulty goods or goods which the vendor regards as “dead on arrival”, as prescribed by the vendor responsible for the brand of goods. Details of prescribed vendor policies are obtainable from Tarsus.
  13. Warranties and Indemnity
    1. Goods are sold only with the manufacturer’s product specific warranties. All other guarantees and warranties, including common law guarantees and warranties in relation to goods and services, are hereby specifically excluded to the maximum extent permissible in law by Tarsus.
    2. All warranties are immediately null and void should any equipment be tampered with or should the “seals” on the equipment be broken by anyone other than Tarsus or its appointed nominee, or should the goods be operated outside the manufacturer’s specifications or warranty terms.
    3. To be valid, warranty claims must be supported by the original tax invoice and the goods must be in their original packaging and must be accompanied by all accessories and manuals. All items must be returned in “as new” condition.
    4. No warranties whether express or implied shall apply, other than those provided expressly in these Standard Terms and Conditions.Tarsus specifically disclaims the implied warranty of merchantability and fitness for a particular purpose. No representation or warranty, including but not limited to statements of capacity, suitability for use or performance made by employees of Tarsus shall be considered to be a warranty by Tarsus. Any such statements made shall not give rise to any liability or whatsoever nature on the part of Tarsus, its employees, subcontractors or subsidiaries. Tarsus will not be liable to the Customer for any loss, damage or expense of any nature, whether direct, special, indirect or consequential, including but not limited to loss of profits arising out of Tarsus’s performance or the use of the goods or services rendered.
    5. The Customer indemnifies and holds Tarsus (including its employees, subcontractors or subsidiaries) harmless against all claims of whatsoever nature that may be brought or threatened against Tarsus by any third party arising from or in connection with any act or omission of the Customer or its employees or any breach of any term of this Agreement by the Customer or arising out of any claim by the Customers duly appointed specified users.
    6. The Customer shall not duplicate copyrighted material. In the event of the Customer duplicating copyrighted material, each attempt to do so will immediately render the full prevailing price in respect thereof payable to Tarsus.
  14. Repairs
    1. Tarsus’s liability in terms of a manufacturer’s warranty is restricted to, in Tarsus or the manufacturer’s discretion, the cost of repair or replacement of faulty goods or services or the granting of credit. Tarsus assumes and shall have no liability at all for the preservation or loss of any data on any goods returned to Tarsus.
    2. In the case of repairs undertaken by Tarsus repair quotes given are merely estimates and are not binding on Tarsus.
    3. The Customer hereby agrees that any item returned for a repair may be sold by Tarsus to defray the cost of such repair if the item remains uncollected for a period of 30 (thirty) days after the repairs have been completed and the customer having been notified thereof.
  15. General
    1. Tarsus reserves the right in its sole discretion to vary or amend any or all of these terms and conditions from time to time and any such amended or varied terms and conditions shall be binding on the Customer from the time that the Customer is notified thereof. Tarsus may give notice of such changes on its website, in email signatures, on quotations or any other manner reasonably likely to come to the Customers attention.The standard terms and conditions are available on our website at http://www.tarsusdistribution.co.za/terms-and-conditions/
    2. This contract represents the entire agreement between Tarsus and the Customer on the matters dealt with herein and shall govern all future contractual relationships between Tarsus and the Customer.
    3. No amendment and/or alteration and/or variation and/or deletion and/or addition and/or cancellation of these terms and conditions, including this clause, whether consensual or unilateral or bilateral shall be of any force and effect unless reduced to writing and signed by a director of Tarsus. No agreement, whether consensual or unilateral or bilateral, purporting or obligate Tarsus to sign a written agreement to amend, alter, vary, delete, add or cancel these terms and conditions shall be of any force and effect unless reduced to writing and signed by a director of Tarsus.
    4. No relaxation or indulgence with Tarsus may grant the Customer shall prejudice or be deemed to be a waiver of any Tarsus’ rights in terms of these terms and conditions.
    5. The Customer shall not cede its rights nor assign its rights or obligations under these terms and conditions.
    6. The Customer undertakes to notify Tarsus within 7 (seven) days of any change of address or change of director, shareholder, address or the information as set out in this contract.
    7. The headings in this document are included for convenience and are not to be taken into account for the purpose of interpreting this contract.
    8. Each of the terms herein shall be a separate and divisible terms and if any such term becomes unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of the other terms.
    9. The Customer undertakes to inform Tarsus in writing at least 14 (fourteen) days prior to the intended selling or alienating of the whole of or any part of the Customer’s business and failure to do so will constitute a material breach of this contract entitling Tarsus to cancel the contract without further notice to the Customer.
    10. Sales of certain goods are subject to the US Government enhanced proliferation control initiative (EPCI) which states that these goods may not be sold to or be used for the purpose of nuclear weapons/explosive devices, for chemical or biological weapons including key components for the production of such weapons, or for the purpose of missiles or missile systems which deliver weapons for mass destruction. The Customer undertakes to exercise due care to ensure that no such restrictions are breached by it.
    11. Goods are manufactured for standard commercial use, and are not intended for use in critical safety systems or nuclear facilities.
    12. Tarsus shall at any time, in its sole discretion, be entitled to cede, assign or subcontract all or any of its rights or obligations in terms of these terms and conditions, including the right to collect any payment, to any third party without prior notice to the Customer.
  16. Disclosure of Personal Information
    1. The Customer understands that the personal information given in this credit application form is to be used by Tarsus for the purposes of assessing credit worthiness. The Customer confirms that the information given in this credit application form is accurate and complete. The Customer further agrees to update the information supplied as and when necessary in order to ensure the accuracy of the above information failing which Tarsus will not be liable for inaccuracies. Tarsus may store (or back up) personal information on computer servers situated outside of South Africa provided that the host country has data privacy laws in place.
    2. Tarsus has the Customer’s consent at all times to contact and request information from any persons, credit bureau or businesses including those mentioned in the credit application form and to obtain any information relevant to the Customer’s credit assessment, including but not limited to information regarding the amounts purchased from suppliers per month, length of time Customer has dealt with each supplier, type of goods purchased and manner and time of payment. Tarsus may store data and personal information outside of South Africa provided that the country has reasonable data protection laws.
    3. The Customer agrees and understands that information given in confidence to Tarsus by a third party on the Customer will not be disclosed to the Customer.
    4. The Customer hereby consents to and authorises Tarsus at all times to furnish credit information concerning the Customer’s dealing with Tarsus and information provided by the customer, to a credit bureau or credit insurer and to any third party seeking a trade reference regarding the Customer in his dealings with Tarsus.
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