Terms and Conditions
IMPORTANT NOTICES
1) This document contains the terms and conditions on which Sub-Eight Technologies Proprietary Limited (“Sub-Eight”) sells
products and services (“Products”).
2) This document contains terms and conditions which appear in similar text style to this clause and which;
a. may limit the risk or liability of Sub-Eight or a third party; and/or
b. may create risk or liability for the Purchaser; and/or
c. may compel the Purchaser to indemnify Sub-Eight or a third party; and/or
d. serves as an acknowledgement, by the Purchaser, of a fact.
3) To the extent that the Purchaser is a consumer for the purposes of the Consumer Protection Act, 2008 (“CPA”), the Purchaser’s
attention is drawn to these Terms and Conditions because they are important and should be carefully noted.
4) Nothing in these terms and conditions is intended to or must be understood to unlawfully restrict, limit or avoid any rights or
obligations, as the case may be, created for either the Purchaser or Sub-Eight in terms of the CPA.
APPLICATION OF THIS DOCUMENT
1.1) This document, as amended by Sub-Eight from time to time in accordance with the provisions of the ECT Act, the CPA or any other
applicable legislation, is applicable to the provision and use of all Products sold by Sub-Eight to Purchasers.
1.2) The Purchaser accepts and agrees that these terms and conditions become binding once Sub-Eight has processed the Purchaser’s Order
and agreed to provide the Products. Sub-Eight will notify the Purchaser in writing if the Purchaser’s Order is not accepted.
1.3) Each order for Products, and each instance in which Products are sold to the Purchaser, shall constitute a separate Sale Agreement
between the Purchaser and Sub-Eight and shall be governed by this document.
1.4) In the event of a conflict between these Terms and Conditions and the Order then these Terms and Conditions shall take precedence.
1.5) The Parties may agree certain terms and conditions relating to a certain Product regarding the manner in which the Product may be
used. In such an event, those specific terms will be recorded in writing in a separate document signed by both Parties (“Terms of Use
Sheet”). The Terms of Use Sheet will be considered an annexure to these Terms and Conditions and shall be in addition to these Terms
and Conditions and not in substitution thereof. In the event of a conflict between these Terms and Conditions and the Terms of Use
sheet then the Terms of Use Sheet will take precedence.
1.6) Sub-Eight reserves the right to amend these Terms and Conditions from time to time. Sub-Eight will give written notice to each Purchaser of such amendments by placing the amended terms and conditions on the Sub-Eight website (www.sub8tech.co.za)
ORDERS AND PRICE
2.1) All orders received for Products will be processed in accordance with Sub-Eight’s normal business pracƟce.
EXPORT ORDERS
3.1 )The export of Sub-Eight Technologies products is subject to the jurisdiction of the U.S. Department of Commerce, South African
Department of Trade & Industry, and is subject to the Export Administrative Regulations (“EAR”). Other export controls may apply,
including but not limited to U.S. Department of State export license requirements, the Foreign Corrupt Practices Act (FCPA) and the UK
Anti-Bribery Act. Compliance with all export controls is the Dealer’s responsibility. The sale, transfer or shipment of any controlled
product which is prohibited from export or subject to export restrictions, including export licenses and accompanying documentation
and authorisation, is expressly prohibited by South African Law. Certain documentation, including import certificates or their
equivalent, ultimate consignee country, name and address, confirmation of end use of the product, may be required to apply for an
export license and fill an order. Furthermore, diversion, resale, re-export, or transfer of the controlled products contrary to the
documentation or information provided is prohibited.
3.2) It is the Purchaser’s responsibility to obtain the necessary import permit.
3.3)Any cost which Sub-Eight may have incurred by the nonavailability of the import permit to the Purchaser on the date by which the Products are ready for dispatch will be for the Purchaser’s account.
PAYMENT
4.1) Unless otherwise agreed upon in writing, any amount payable pursuant to this document shall be Cash-on-Delivery from the date of issue of an Invoice by Sub-Eight for the Products in question.
4.2) All payments by the Purchaser and other amounts due shall be paid in full, without any deduction or set-off and without the costs of
transfer of funds either in cash at the premises of Sub-Eight or directly into the bank account of Sub-Eight as indicated in the Invoice or
such other bank account as Sub-Eight may notify the Purchaser of in writing from time to time
4.3) Sub-Eight shall be entitled to charge interest on any amount not paid on the due date for payment at the Prime Rate plus 5% (five per cent) calculated from the due date for payment until the date of payment, both days inclusive.
DELIVERY, OWNERSHIP AND RISK
5.1) Ownership in the Products shall pass to the Purchaser when the total purchase price in respect of the Products purchased have been
paid in full and received by Sub-Eight. Accordingly, ownership in and to these Products shall remain vested in Sub-Eight until fully paid
for, notwithstanding anything to the contrary herein contained or in any contract of carriage, insurance, or finance.
5.2) Notwithstanding the provisions of clause 5.1 above, risk in the Products shall pass to the Purchaser on the date of delivery, including
the risk of loss, theft, destruction, or damage.
5.3) In the event Sub-Eight issues a Product or Service, all risk passes on to the Purchaser including risk of loss, theft, destruction, damage or
technological changes to instrument settings, calibration accuracy, computer hardware or software affecting compatibility with the
Product.
5.4) Sub-Eight shall deliver the Products to the Purchaser at the place stipulated on the relevant Order and the Purchaser shall be obliged to
take delivery of the Products when tendered.
5.5) Sub-Eight will at all times endeavor to dispatch the Products for delivery to the Purchaser as soon as practicably possible after the Order
confirmation has been issued, however the Purchaser acknowledges that Sub-Eight’s ability to supply the Products is dependent on its
stock levels. The Purchaser shall not be entitled to rely on any indication given to the Purchaser, indicated prior to or at the time of
placing of the Order or thereafter, of the time at which delivery shall take place, which shall merely be an estimate, and Sub-Eight shall
not be liable or accountable to the Purchaser for any claims, loss or damages suffered in relation thereto.
5.6) Delivery of the Products shall be deemed to be effected as follows –
5.6.1) in the case of physical Products, when dispatched via courier, or its designated agent, or upon the signature of any employee or agent
of the Purchaser, on Sub-Eight’s official invoice, delivery note or waybill, or the delivery note of any authorised independent courier.
5.6.2) in the case of physical Products, when dispatched via courier, or its designated agent, or upon the signature of any employee or agent
of the Purchaser, on Sub-Eight’s official invoice, delivery note or waybill, or the delivery note of any authorised independent courier.
5.8) Where Sub-eight is responsible for shipping, the Purchaser is required to inform Sub-Eight of non-delivery/ non receipt of Products
within 7 calendar days delivery date.
5.9) Unless expressly agreed to in the Terms of Use sheet, Sub-Eight makes no warranties for the suitability of the Products sold for any end use contemplated by the Purchaser. It is the sole responsibility of the Purchaser.
5.9.1) to ensure the suitability of the Products for the use contemplated by the Purchaser and/or any End-User.
5.10) No delay (whether occasioned by a delay in delivery of Products ordered by the Purchaser, to the Purchaser by the suppliers or couriers of Sub-Eight or by other causes beyond Sub-Eight’s reasonable control (as contemplated in clause 5) shall give rise to a right or claim for loss, damages or cancellation of an Order or this Agreement by the Purchaser.
5.1.1) The Purchaser shall be liable for all additional costs occasioned by –
5.1.2) the Purchaser’s specific request for delay or suspension of delivery
5.12) Notwithstanding anything to the contrary herein contained, Sub-Eight shall not be liable to the Purchaser in respect of the non-performance of any of the provisions of this Agreement in the event and to the extent that such non-performance is as a result of or
has been caused by force majeure, which shall mean any event beyond the reasonable control of Sub-Eight or which could not
reasonably have been foreseen by it, and shall include, but not be limited to, –
5.12.1) inability to secure or procure labour and/or Products (including due to a breach by any supplier of Products for an Order therefor), if
applicable, despite Sub-Eight having taken all reasonable steps to procure same; or
5.12.2) any act of God, war, strike, lockout or other labour dispute, fire, flood, drought, rain, storm, rough seas, wind or any exisƟng or new
legislation, general power failures, breakdown of telecommunication networks or computers, political intervention, imposition of
sanctions, riot, insurrection embargoes, quarantine or any governmental barring directive or order
DATA PROTECTION AND PROCESSING OF PERSONAL INFORMATION
6.1) Sub-Eight may, and the Purchaser expressly consents to, the collecting and processing of its Personal Information by Sub-Eight, in order
to process the Order; to draw matrices, statistic and user reports from the Designated System to identify potential markets and trends;
to determine current and future customer requirements and develop new products and services.
6.2) Any Personal Information obtained will be used in accordance with Sub-Eight’s Privacy Policy, which can be viewed on
www.sub8tech.co.za.
INTELLECTUAL PROPERTY AND PERMITTED USE
7.1) Notwithstanding the sale and delivery of the Products to the Purchaser, all copyright, patent rights, trademarks, registered design or
any application for registration of the same, database rights, design rights, rights in trade, business or domain names, rights in trade
dress, rights in inventions, rights in confidential information or knowhow, whether registered or unregistered, or any similar or
equivalent rights in any part of the world and all other intellectual property rights in and to the content of the Products shall at all times
remain vested in Sub-Eight or its licensors. Any Personal Information obtained will be used in accordance with Sub-Eight’s Privacy Policy,
which can be viewed on www.sub8tech.co.za.
7.2) Sub-Eight hereby grants the Purchaser, who hereby accepts, a non-exclusive, non-transferable license to use the Products in accordance with these Terms and Conditions (and the Terms of Use Sheet, if applicable). In respect of the Electronic Products, the aforesaid license shall endure for the “subscription period” indicated in the Sub-Eight catalogue prevailing at the time of purchase, read with the applicable Invoice.
7.3) Unless otherwise stipulated in the Terms of Use Sheet for the relevant Electronic Product;
7.4) Unless Sub-Eight agrees otherwise in writing, the Purchaser may not display or distribute any part of the Electronic Products on any
electronic network other than as permitted in these Terms and Conditions.
7.7) Internet products can be accessed by;
7.7.1) using internet protocol (“IP”) authentication which requires the purchaser to provide Sub-Eight with a static IP address or static range of IP addresses. The Purchaser must notify Sub-Eight of any changes to such IP addresses.
7.7.2) using username and password. The username must be an active email address.
7.8) Sub-Eight may make use of cookies when verifying the End- user’s IP address.
INTELLECTUAL PROPERTY AND PERMITTED USE
8.1) Unauthorised use of Sub-Eight Technologies’ and its Brand Partners’ name, images, copyrights, trademarks, patents, or other
intellectual property including use of Sub-Eight Technologies or a Sub-Eight Technologies represented Brand, or trademark as a domain name or internet address or for identification of a social media channel or page is strictly prohibited.
FREIGHT POLICY
9.1) Ex Works. Please provide method of shipment, forwarder details, type of service and forwarder account number (where applicable) at
time of order placement as this will expedite order processing. If a customer chooses not to use Sub-Eight Technologies preferred
freight forwarders, a handling charge may be required for special documents. Freight quotes can be obtained only aŌer goods are
packed, which will normally be completed 7 working days after order has been released to production. If a Dealer chooses to use a Sub-Eight Technologies preferred freight forwarder, costs associated with the consignment will be billed at Forwarder invoiced cost by Sub-Eight Technologies at the time of shipping.
9.2) Reference to use of Sub-Eight Technologies preferred freight forwarder does not preclude use of preferred customs agent and will be
subject to relevant INCOTERMS as agreed with Dealer at time of shipping.
9.3) Pre-paid shipments of dangerous goods using Sub-Eight Technologies preferred freight forwarder recommended or indemnification
agreement may be required.
RESALE POLICY
Sub-Eight Technologies Dealers are authorised for the sale of products to end-user customers. The resale of product to unauthorised
Dealers is strictly prohibited. Except as expressly approved by Sub-Eight Technologies in writng, sales to any internet reseller is
prohibited. Sub-Eight Technologies Dealers may not knowingly sell to a customer that sells on third party websites or marketplaces.
Sub-Eight Technologies Dealers may sell Sub-Eight Technologies products via Sub-Eight Technologies Dealer’s own company owned
eComm enabled website. If it is determined that a Sub-Eight Technologies Dealer is knowingly selling to a customer that is active on
third party websites or marketplaces without written consent, the Sub-Eight Technologies Dealer’s ability to purchase Sub-Eight
Technologies products may be limited or terminated.
LIMITATION OF LIABILITY
11.1) In addition to any other specific exclusions of liability contained herein and unless otherwise expressly stated herein, the Parties agree
that the Purchaser shall have no claim against Sub-Eight for any loss or damage, of any nature, occasioned by any defect in any Products
supplied, or any failure to provide adequate instructions in respect of any hazards that might arise from the use or incorrect use of the
Products save to the extent that such loss or damage is contemplated in section 61 of the CPA, and provided that nothing in these
Terms and Conditions must be construed as in any way limiting the rights of the Purchaser to raise such defense’s as may be available to
it at common law or in terms of any statute.
11.2) Notwithstanding the provisions set out in clause 9.1 above, if Sub-Eight provides advice regarding the application of Sub-Eight Products,
the liability of Sub-Eight in respect of the non-suitability of the Products for the purpose for which they are used will be limited to the
selling price of those Products.
11.3) Sub-Eight accepts no liability for damage to Products caused by inadequate storage, tampering by parties not authorised by Sub-Eight,
negligence of the Purchaser or End-User, or use of the Products by the Purchaser in applications for which they are not recommended
(including use in a manner not authorised in the Terms of Use Sheet accompanying the Product).
11.4) Sub-Eight, its officers, employees, suppliers, internet service providers, partners, affiliates and agents, shall not be liable for any direct
damage, loss or liability, howsoever arising, incurred by End-Users or any other persons and resulting from the use or inability to use
the Products, unless such damage was caused by the gross negligence of Sub-Eight or any or a combination of the a foregoing persons.
DEFAULT EVENTS
12.1) The Purchaser shall be in default of its obligations in terms of the sale Agreement if it –
12.2) fails to pay punctually any amount due and payable to Sub-Eight and fails to remedy the non-payment within a period of 7 (seven)
Calendar Days from the date of written notification to that effect from Sub-Eight; or
12.2.1) commits any other breach of any of the terms of the Agreement and fails to remedy same within a period of 7 (seven) Calendar Days
from the date of written notification to that effect from Sub-Eight; or
12.2.2) allows any judgments against it to remain unsatisfied for a period of 5 (five) business days; or
12.2.3) compromise or attempts to compromise any debt with any of its creditors; or
12.2.4) is provisionally or finally sequestrated, liquidated, wound-up or placed under business rescue or curatorship; or
12.2.5) permits any lien, hypothec, notarial bond, pledge, other security, or interest to be created over the Products, or abandons the Products
or relinquishes possession of the Products, or allows the Products to be seized under any legal process issued against the Purchaser
prior to the discharging all of its obligations arising from the Sale Agreement.
12.3) Upon the Purchaser being in default, or should Sub-Eight be otherwise entitled in law, Sub-Eight shall, without prejudice to any other
rights that it may have at law or in terms of the Sale Agreement be entitled to –
12.3.1) suspend all supply of or access to Products until such time as payment of all amounts owed is received in the case of a default in terms of clause 10.1.1; or
12.3.2) cancel this Agreement on written notice to the Purchaser or to claim specific performance in terms of this Agreement for any
obligation owed by the Purchaser to Sub-Eight; and
12.3.3) claim damages from the Purchaser; and
12.3.4 repossess any product related to this agreement.
12.4) Without derogating from the provisions of 4.4, if the Purchaser cancels or purports to cancel this Agreement then, notwithstanding
anything to the contrary herein, the Outstanding Amount shall immediately be due and payable by the Purchaser to Sub-Eight.
DOMICILIUM & INFORMATION
13.1) The Purchaser hereby chooses as its domicilium citandi et executandi for all purposes under or arising from the Sale Agreement and its
street address provided to Sub-Eight in the Order.
13.2) Any notices sent by facsimile or email shall be deemed to have been received on the date of transmission provided that the
transmission or receipt report does not indicate otherwise and if posted by registered or secured mail, on the 10th(tenth) day after
posting.
13.3) The Purchaser shall notify Sub-Eight in writing of any changes in the information provided to Sub-Eight in the Order. Sub-Eight shall not
be liable for any damages, loss or expenses suffered or incurred by the Purchaser as a result of the non- compliance by the Purchaser
with this clause
LEGAL COSTS
In the event of a default by the Purchaser under the Sale Agreement, the Purchaser will be liable for all legal and related costs.
APPLICABLE LAW AND JURISDICTION
15.1) The Sale Agreement will in all respects be governed by and construed under the laws of South Africa.
15.2) The Parties consent and submit to the jurisdiction of the High Court of South Africa, Gauteng Division, Johannesburg in respect of any
dispute between them in relation to or arising from the Sale Agreement.
CREDIT INFORMATION
The Purchaser agrees that Sub-Eight may –
16.1) make inquiries to confirm any information provided by the Purchaser in the Order;
16.2) seek information from any credit bureau when assessing the Purchaser’s application and at any Ɵme during the existence of the Sale
Agreement; and
16.3) disclose the existence of the Purchaser’s account to any credit bureau, share positive and negative information about the Purchaser and its compliance with the Sale Agreement with any such credit bureau.
GENERAL
17.1) If any provisions of the Sale Agreement are found to be unlawful, unenforceable, or invalid, it shall be deemed to be separate and
severable from the remaining provisions of the Agreement and to the extent that same is unlawful, unenforceable or invalid, be
deemed to be pro non scripto.
17.2) No extension of time or other indulgences granted by Sub-Eight to the Purchaser in respect of its obligations will constitute a waiver or
novation of or otherwise affect any of credit provider’s rights to enforce strict compliance with the terms of the Sale Agreement.
17.3) Sub-Eight reserves the right to amend these terms and conditions without notification to third parties.
17.4) The Sale Agreement together with these terms and conditions constitutes the whole agreement between the Parties and no Party shall
be bound by any undertakings, representations, warranties and promises or the like not recorded therein.
