1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions, unless the context clearly indicates a contrary intention, the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
1.1.1 “Business Day” means any day other than a Saturday, Sunday, or official public holiday in the Republic of South Africa;1.1.2 “CPA” means the Consumer Protection Act, Act 68 of 2008, as amended from time to time;1.1.3 “Credit Facility” means a formal credit facility granted by Nexotronix to certain of its customers by way of approval of a formal credit application;1.1.4 “Customer” means any person or entity that contracts with Nexotronix for the purchase and supply of Products/Services;1.1.5 “Nexotronix” means Nexotronix (Pty) Ltd, Registration Number 2022/763282/07.1.1.6 “Material” means all reports, documentation, data, information, software, or inventions, irrespective of the media on which they occur, and includes, without limiting the generality thereof, all written and printed material, all micro graphic and other reproductions of the written word, depiction and pictorial material, and all audio visual, machine readable, and other information;1.1.7 “NCA” means the National Credit Act, Act 34 of 2005, as amended from time to time;1.1.8 “Parties” means the Customer and Nexotronix collectively, and “Party” means either one of them OR an affiliated company of either one of them, as the context may require;1.1.9 “Services” refers to all activities related to projects, including but not limited to design, manufacturing, installation, maintenance, and training.1.1.10 “Contract” means the agreement formed between Nexotronix and the Customer upon acceptance of a formal project quotation.1.1.11 “Products/Services” means any and all Products/Services acquired/ordered by the Customer from Nexotronix from time to time;1.1.12 “Goods and Services provided” means Nexotronix provides various project-based services, which may include, but are not limited to:1.1.12.1 Consultation and system design,1.1.12.2 Engineering and prototyping,1.1.12.3 Product development and customisation,1.1.12.4 Manufacturing and assembly,1.1.12.5 Hardware and software integration,1.1.12.6 Installation and commissioning,1.1.12.7 Testing, validation, and quality assurance,1.1.12.8 Documentation and technical writing,1.1.12.9 Training and knowledge transfer,1.1.12.10 Remote and on-site support,1.1.12.11 Maintenance and repair services,1.1.12.12 Upgrades and retrofitting,1.1.12.13 Project management and coordination,1.1.12.14 IT and network infrastructure setup,1.1.12.15 Cybersecurity and risk assessment.1.1.13 “Acceptance of terms” means by using our services, you acknowledge that you have read, understood, and agreed to be bound by these All-Inclusive Terms; and1.1.14 “Terms and Conditions” means these general terms and conditions of sale.
1.2 In these Terms and Conditions, the words “clause” or “clauses” refer to clauses of these Terms and Conditions.
2. APPLICATION
2.1 Unless otherwise agreed in writing, only these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) shall apply to an order for the sale of Products/Services, whether the order arises out of:2.1.1 an offer made by Nexotronix and accepted by the Customer;2.1.2 an offer made by the Customer and accepted by Nexotronix, including any such offer made by the Customer in response to a quotation by Nexotronix; and/or2.1.3 any other contract, agreement or arrangement entered between the Parties.
2.2 For avoidance of doubt, these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) will override all terms and conditions of sale and/or purchase stipulated/advanced by the Customer, unless specifically agreed otherwise between the Parties in writing. In this regard, and unless specifically agreed otherwise in writing:2.2.1 the Customer hereby renounces its own terms and conditions of purchase/sale, or any equivalent or like terms and conditions implemented by the Customer from time to time; and2.2.2 clauses, provisions, terms, conditions etc. contained in, or forming part of, the Customer’s aforementioned terms and conditions (refer clause 2.2.1) shall not amend or modify these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)); and2.2.3 no conflicting or other provisions, terms, conditions, clauses etc. in the Customer’s aforementioned terms and conditions (refer clause 2.1.1) shall be binding on Nexotronix, in any manner or form.
2.3 These General Terms and Conditions are freely available to each and every of Nexotronix customers from time to time via Nexotronix website at [https://nexotronix/terms-conditions](https://nexotronix/terms-conditions) and/or at Nexotronix head office. It is clear that these Terms and Conditions are subject to change from time to time, as Nexotronix may determine in its sole and absolute discretion, and it shall be and remain the Customer’s sole and absolute responsibility and liability to ensure that he/she remains up to date and knowledgeable on the latest version of these Terms and Conditions in issue from time to time. The Customer acknowledges that he/she shall be bound by the latest version of the Terms and Conditions in issue from time to time, notwithstanding its signature hereto.
3. QUOTATIONS AND ORDERS
3.1 Quotations delivered by Nexotronix are subject to the rate of exchange and shall be valid for a period of 30 (thirty) Business Days only, unless specifically recorded otherwise in writing by Nexotronix. Failure to issue a Purchase Order will result in Nexotronix issuing an updated quotation.3.2 Nexotronix reserves the right to amend quotations in the event of changes to project specifications or materials.3.3 The acceptance of quotations and the placing of orders shall not be binding on Nexotronix, unless acknowledged and confirmed in writing by Nexotronix.3.4 An official Purchase Order, from the Customer, is required before commencement of an order.3.5 Nexotronix reserves the right to adjust prices quoted if the Customer fails to order and/or purchase the volumes originally given as a basis for the quotation.3.6 All orders are subject to review and acceptance by Nexotronix. Receipt of a purchase order does not constitute confirmation of availability or a binding commitment to supply. Nexotronix reserves the right, at its sole discretion, to accept or decline any order, in whole or in part. Customers will be notified promptly if we are unable to proceed with an order. A formal acknowledgement of the purchase order will be issued upon acceptance.3.7 Nexotronix shall not be obliged to deliver on an order that is below Nexotronix indicated minimum order quantity (if any and as determined from time to time).
4. PRICE
4.1 In instances where a quotation has been delivered by Nexotronix and accepted by the Customer, the purchase price applicable will be based on the accepted quotation.4.2 The prices indicated as per quotation correspond exclusively to the elements and tasks described in the present offer. Any modifications and/or deterioration from the initial quotation will be invoiced for separately.4.3 Should no accepted quotation exist, the acceptance of a purchase order is subject to the proviso that the Products/Services will be supplied at the prices applicable as per Nexotronix official price list in force from time to time.4.4 If any of Nexotronix costs/expenses in selling and delivering Products/Services to the Customer (i.e. costs of sales, transport, delivery, etc.) have increased for any reason beyond Nexotronix control, or in the ordinary course of Nexotronix business, before delivery, then the purchase price, albeit as per accepted quotation Nexotronix price list, shall be increased by the excess or, if the excess cannot be determined exactly, by a reasonable allowance for it.4.5 All information contained in any price list of Nexotronix is subject to change from time to time, as Nexotronix may determine in its sole and absolute discretion, and it shall be and remain the Customer’s sole and absolute responsibility and liability to ensure that he/she remains up to date and knowledgeable on the latest version of each of Nexotronix price lists in issue from time to time.
5. COSTING
5.1 Unless specifically agreed otherwise between the Parties in writing, all prices quoted by Nexotronix and/or referenced in Nexotronix price lists applicable from time to time, will be deemed to be quoted and referenced:5.1.1 exclusive of VAT;5.1.2 exclusive of any and all costs and charges related to loading (incl. on-loading and off-loading), insurance, customs, duties, taxes, transport, and packaging; and5.1.3 on the basis of EXW delivery at a location nominated by the supplier.
6. DISCOUNTS AND REBATES
6.1 Prices charged will be strictly nett and not subject to any discount/rebate, unless otherwise agreed in writing between the Parties.6.2 In the event that Nexotronix agreed to grant a settlement, volume, trade, or other discount/rebate, such discount/rebate shall only be effectively and formally granted where Nexotronix receives full payment by due date. If Nexotronix does not receive full payment by due date, the settlement or trade discount/rebate shall be regarded as null and void and the Customer shall be liable for payment of the full amount charged. Interest and penalty charges, as provided for in these Terms and Conditions, shall be levied on such full amount charged.
7. PAYMENTS
7.1 General7.1.1 All amounts owing by the Customer to Nexotronix from time to time shall be paid by the Customer to Nexotronix:7.1.1.1 on or before the due date for payment thereof;7.1.1.2 via electronic funds transfer into such a bank account as Nexotronix may nominate from time to time;7.1.1.3 All amounts owing by the Customer to Nexotronix from time to time shall be payable in South African Rand (ZAR) or, where applicable, to a CFC (Customer Foreign Currency) account held by Nexotronix, and shall be made free of any bank charges, deductions, or other fees;7.1.1.4 free from any and all deduction, withholding, set-off and/or counterclaim of any nature whatsoever; and7.1.1.5 due as per the schedule outlined in the project Contract/Quotation.
7.1.2 Should any payment not be received by Nexotronix from the Customer by the due date for payment thereof, Nexotronix shall have the option, without prejudice to any of its other rights (albeit in terms of these Terms and Conditions or otherwise), to cancel or suspend further supply of Products/Services and/or, by giving written notice thereof to the Customer, to require immediate payment of all amounts owing by the Customer to Nexotronix, whether or not those amounts are actually due, and/or to take any other action it may deem necessary, in accordance with these Terms and Conditions or otherwise at law, until such payment is received. All goods supplied remains the property of Nexotronix until paid for in full.
7.1.3 All payments received by Nexotronix from the Customer from time to time shall be appropriated firstly towards levied interest/penalties and thereafter to capital.7.1.4 The Customer shall not withhold or delay payment to Nexotronix for any reason whatsoever and/or at any time whatsoever.7.1.5 Any delay in the deposit, progress, and final payments, as agreed per the quotation, may have consequences. This may cause freezing of work-in-progress, delay in receiving materials within the time frame from suppliers, stopping the initialization of the systems. Nexotronix will charge a 3% (Three percent) penalty per month, of the total project cost, for any delays related to payments.7.1.6 Any delays in the installation and the initialization of the Products/Services, caused by the Customer for whatever reason hereto, and not caused by Nexotronix, will be notified in writing to the Customer and any additional costs generated as a direct/indirect result hereof will be invoiced for additionally.
7.2 Cash Payments7.2.1 In the event that the Customer does not hold a Credit Facility with Nexotronix, or the Parties determine that a particular sale will be concluded on a “cash” basis, purchases shall be treated on the basis of:7.2.1.1 cash before delivery/order (Advanced payment); or7.2.1.2 as the Parties may otherwise agree from time to time in writing.
7.2.2 Cash Payment customers’ Purchase Orders need to arrange payment to secure the orders no later than 5 working days. Failure to this term will result in the cancellation of the Customer’s Purchase Order and a new quotation is to be issued due to the rate of exchange.7.2.3 Any payment to be made “before delivery” shall only be deemed to have been made once formal proof of payment has been delivered to Nexotronix and the relevant amount reflects in Nexotronix nominated bank account. Until such a time as the aforementioned has occurred, Nexotronix shall have no obligation to commence with delivery of any Products/Services ordered.7.2.4 The sufficiency, and subsequent acceptance, of the “formal proof of payment” referred to in clause 7.2.3 above, shall be within the sole and absolute discretion of Nexotronix.7.2.5 Should the Parties agree to payment on a basis other than “cash before delivery” for a specific order, payment shall be made before 16h00 on the day agreed for payment.
7.3 Credit Facilities7.3.1 In the event that the Customer holds a Credit Facility with Nexotronix, the Customer shall make payment of any and all amounts owing in respect of the Credit Facility within the time frame allowed by that Credit Facility. The time frame for payment allowed by a Credit Facility shall be calculated as of the date of Nexotronix invoice in respect of the Products/Services to be paid.7.3.2 Nexotronix shall be entitled, in its sole and absolute discretion, to amend and/or withdraw any Credit Facility granted by it to the Customer.7.3.3 The time frame for payment under Credit Facilities differs from one customer to the next. The Customer’s time frame for payment under the Credit Facility it holds (if any) shall be determined via the relevant Credit Facility documentation completed, signed, and submitted by it and accepted by Nexotronix.
7.4 Deposit7.4.1 Nexotronix may, in its sole and absolute discretion, require the Customer to pay a non-refundable deposit in respect of any orders placed, irrespective of whether that Customer holds a Credit Facility or not. Should Nexotronix require the Customer to pay a non-refundable deposit, the requirement for payment of such a deposit will be specified in the quotation delivered by Nexotronix to the Customer in respect of those Products/Services. Failure by the Customer to pay a non-refundable deposit required by Nexotronix, will entitle Nexotronix to withhold supply of the Products/Services to which the relevant order and deposit requirement relates.
8. INTEREST
8.1 Nexotronix shall be entitled to charge the Customer interest on any overdue amount at a rate of 2% (two percent) per month, calculated from the date the payment became due until the date of actual payment. For the avoidance of doubt, nothing in this clause shall be construed as granting the Customer any extension of time or indulgence in respect of payment obligations.
9. CERTIFICATE
9.1 A certificate under the hand of any member, shareholder, director and/or manager of Nexotronix (whose appointment need not be proved) as to the existence and the amount of the Customer’s indebtedness to Nexotronix at any time, as to the fact that such amount is due and payable, the amount of interest accrued thereon and as to any other fact, matter or thing relating to the Customer’s indebtedness to Nexotronix, shall be prima facie proof of the contents and the correctness thereof for the purposes of provisional sentence, summary judgment or any other proceedings of whatsoever nature against Nexotronix in any competent court and shall be valid as a liquid document for such purpose.
10. DELIVERY
10.1 Unless the Parties agree otherwise in writing, delivery of Products/Services will occur on the basis of EXW.10.2 Free road freight delivery within a 40km radius from our Head Office Premises, 3–4 business days. Any other deliveries will be quoted for additionally.10.3 Time shall not be the essence of any order and any and all delivery dates which may be advanced must be (and will be) treated as approximate/estimated only, based on the latest information available to Nexotronix. Under no circumstances shall the Customer be entitled to withdraw from and/or terminate any order on account of any delay in delivery or have any claim of any nature whatsoever against Nexotronix arising from late delivery. Estimated delivery times for in stock items: Allow 1–2 business days to prepare the order, unless specified otherwise per quotation (Exclude road freight delivery time as per Clause 10.2). Back-order items: Allow 4 weeks from order entry and payment made (as per clause 6), unless specified otherwise per quotation (Exclude road freight delivery time as per Clause 10.2).10.4 The indicated delivery schedule, as per quotations, for customised project-based orders, is valid starting from the final written approval of the project and the acceptance of the order in each one of its individual terms, including deposit payment.10.5 Nexotronix will not be liable for any loss of production related to the Customer production schedules, whether or not related to the delivery of the project or not.10.6 If the Customer fails to take delivery of Products/Services upon Nexotronix tendering delivery then:10.6.1 all risk in and to the Products/Services shall pass immediately from Nexotronix to the Customer, and10.6.2 the Customer shall refund to Nexotronix, on first demand, the reasonable costs (including storage and insurance) of keeping the Products/Services during the period of that delay.10.7 All risk, liability and responsibility in Products/Services ordered shall pass to the Customer on either the due delivery date, if the Customer has not yet taken possession of the Products/Services (refer clause 10.6 above), or on the moment delivery has been completed, whichever occurs first.10.8 Notwithstanding any other provision to the contrary in any documents exchanged or delivered between or to the Parties, Nexotronix obligation to deliver Products/Services shall in all instances be subject to the following conditions precedent:10.8.1 the availability of Products/Services ordered and the availability of sufficient manpower to produce Products/Services ordered and/or deliver Products/Services ordered; and10.8.2 timeous receipt by Nexotronix of any and all specifications and information that may be required by Nexotronix from the Customer.10.9 Notwithstanding the delivery of any Products/Services to the Customer, ownership and benefit therein shall remain vested in Nexotronix until such a time as Nexotronix has received payment of the full purchase price relating thereto. This shall apply even where credit or other trading/payment facilities is afforded to the Customer.10.9.1 Nexotronix reserves the right to repossess any Products/Services delivered, without prejudice, or to resell such Products/Services from the Customer’s premises (or such other premises as the Products/Services may have been moved to), should payment not be received in full on due date for payment.
11. PRODUCT SPECIFICATIONS
11.1 It is noted and agreed that it shall at all times be the sole and absolute responsibility and liability of the Customer to ensure that correct and accurate Product specifications and descriptions are delivered to Nexotronix with regard to each order. Any document (including order forms, quotations, e-mails, faxes, etc.) delivered or transmitted to Nexotronix by the Customer, albeit a signed document or not, referencing the type, quantity, description, and/or specifications of Products/Services ordered, shall serve as:11.1.1 absolute proof of the Customer’s agreement with and acceptance of the entire content referenced in such document; and11.1.2 absolute confirmation and agreement by the Customer that the correct Products/Services have been ordered by it, including all technical data sheets (if requested by the customer or offered by the relevant sales representative).11.1.3 No modification or extension of the material supply, as per Purchase order, will be accepted without a preliminary written acceptance and a corresponding order on behalf of the customer.
11.2 It is noted and agreed that it shall at all times be the sole and absolute responsibility and liability of the Customer to ensure that correct and accurate Products/Services (as relates to description, type, quantity, specifications, etc.) are delivered to it by Nexotronix. A delivery note signed by the Customer or its representative (albeit a carrier or otherwise) shall serve as:11.2.1 absolute proof of the Customer’s agreement with and acceptance of the entire content referenced in such document; and11.2.2 absolute confirmation and agreement by the Customer that the correct Products/Services ordered (including quantity, type, specification, description, etc.) have been delivered.
11.3 The Customer wholly indemnifies and undertakes to hold Nexotronix completely harmless with regard to any and all claims, damages, losses, costs, expenses, and/or any other negative result Nexotronix may suffer as a result of Nexotronix ordering and/or delivering incorrect Products/Services (albeit as relates to quantity, type, specifications, description, etc.) based on the communications and/or confirmations made and/or delivered by the Customer. For avoidance of doubt, the Customer needs to confirm the order placed is correct, as well as all technical data sheets requested and supplied.
11.4 If Products/Services or any part thereof are to be supplied or delivered in accordance with any special specifications, instructions or information furnished by the Customer, the Customer shall not have any claim of any nature whatsoever against Nexotronix and Nexotronix shall in no form or manner be liable for any loss, damage, claim or cost sustained by the Customer or anyone else (albeit as a result of death, injury or otherwise) as a result of any error, discrepancy or defect in, or brought about by, those specifications, instructions and/or information.
12. RETURNS
12.1 The Customer acknowledges that it, or its representative in taking delivery of the Products/Services, will at all times have a reasonable opportunity to inspect the Products/Services before Nexotronix delivery note is signed. The inspection will generally be aimed at satisfying the Customer that the Products/Services delivered:12.1.1 are of the type and quality reasonably contemplated by the Parties; and12.1.2 correspond, in all material respects and characteristics, to that which an ordinary alert customer would have been entitled to expect, when considering the descriptions and/or a reasonable examination of any samples presented as basis for the order; and12.1.3 in the case of special-order Products/Services, reasonably conform to the material specifications of the special-order.
12.2 In the event that Nexotronix delivery note is signed, irrespective of whether the right to inspection referenced in clause 12.1 has been exercised or not, it shall be deemed that the Customer is completely aware of and satisfied with the entire nature and extent of the Products/Services delivered. Subsequently should the customer, subject to clauses 12.1.1 through to 12.1.3 be unsatisfied with the goods ordered and delivered according to his specifications listed on the order, Nexotronix will have the sole right to either accept or reject the return of unopened goods in its original packaging within 5 business days from the delivery date subject to a handling fee charge of 25% on the total invoiced value (Ex VAT). For any specialized orders (Special made to order or Products/Services cut to the customer specifications), the Customer will have no right or title to return any of the said Products/Services to Nexotronix. For avoidance of doubt, the Customer shall always have the opportunity to examine the Products/Services before Nexotronix delivery note is signed, albeit via third party representatives or otherwise.
12.3 In the event that customers goods (returns not allowed/samples) have not been collected from Nexotronix premises, within a maximum period of twelve (12) months, Nexotronix has the right to scrap the goods.
13. WARRANTIES ON PRODUCTS
13.1 Nexotronix does not deliver or provide any warranties of any nature whatsoever with regard to any Products, except for those:13.1.1 that are delivered or provided by a supplier of Nexotronix on Products supplied by that specific supplier, and the benefit of which Nexotronix on passes to the Customer; or13.1.2 that are prescribed by law; or13.1.3 which are expressly provided in writing by Nexotronix.
13.2 Any and all warranties delivered by Nexotronix, shall only cover defects that may develop during proper use, treatment, storage, dispensing and handling of the Products.13.3 The Product’s accuracy is guaranteed when an assembly set is supplied by Nexotronix.
14. WARRANTIES ON PROJECT BASED GOODS AND SERVICES
14.1 Nexotronix represents and warrants that it shall ensure that the Goods and Services shall meet the specifications set out by it, or such future specifications as it shall provide, provided, however, that Nexotronix does not warrant that the products will meet the Customer’s requirements or that the operation of same will be error-free;14.2 The warranty set herein is limited to the replacement by Nexotronix of defective items, or to credit the Customer for the price thereof, at the sole discretion of Nexotronix. The warranty is also the Customer's sole remedy and is in lieu of any other expressed or implied guarantee or warranty including any implied warranty of merchantability or fitness for a particular purpose.14.3 The event of a warranty claim, the licensor shall have no liability in respect of the warranty if such warranty is as a result of:14.3.1 Unauthorized modification/s to the products by the Customer or any third party;14.3.2 Damage to the products by the Customer;14.3.3 Failure of electrical power;14.3.4 Use of the products which are other than the general use of the products as specified by the signed off drawings.14.4 Nexotronix confirms that all products contain a 12-month warranty on workmanship and products supplied on all equipment provided, starting from the date of commissioning and handover. The warranty on products supplied is in line with its international suppliers’ terms, from date of receipt of such products by the Customer.14.5 Any product defects must be reported to the Company within 5 days of it becoming evident by written email.
15. LIMITATION OF LIABILITY
15.1 Nexotronix shall be exempted from and shall not be liable under any circumstances whatsoever for any indirect or consequential damages of any nature whatsoever or any loss of profit or special damages of any nature whatsoever, whether in the contemplation of the Parties or not, which the Customer or anyone else may suffer as a result of any act and/or neglect of Nexotronix of any nature whatsoever or otherwise.15.2 Nexotronix shall be exempted from and shall not be liable under any circumstances whatsoever for any damages of any nature whatsoever (albeit direct damages), whether in the contemplation of the Parties or not, which the Customer or anyone else may suffer as a result of any act and/or neglect of Nexotronix of any nature whatsoever or otherwise, unless same was caused by the wilfully malicious and/or grossly negligent acts and/or neglects of Nexotronix.15.3 The Customer acknowledges that it shall ensure that it is fully acquainted with the condition of all purchased Products/Services at all times, albeit via third party representatives or otherwise.15.4 Notwithstanding anything contained herein or elsewhere to the contrary, Nexotronix liability toward the Customer shall never exceed the amount/s actually paid by the Customer to Nexotronix for the relevant Products/Services/Services to which the specific claim relates.
16. NON-PERFORMANCE
16.1 The Customer shall not have any claims of any nature whatsoever against Nexotronix for any failure by Nexotronix to carry out any of its obligations under an order of these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) as a result of vis major, force majeure, act of God, strike or lockout, shortage of labor or materials, breakdown of machinery delays in transport, accidents of any kind and default or delay by any sub-contractor or supplier of Nexotronix, riot, political or civil disturbances, the elements, any act of any state or government or any authority, or any other cause whatsoever beyond Nexotronix control.16.2 The Customer shall not have any claims of any nature whatsoever against Nexotronix for any failure by Nexotronix to carry out any of its obligations under an order of these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) as a result of failure of carriers to furnish facilities for transportation, interference with supplies to Nexotronix from the then existing sources of supply of any Product, such interference including expropriation, confiscation, nationalization, relinquishment of ownership or control over all or part of the Products/Services by reason of request of or agreement with any governmental authority to whose jurisdiction Nexotronix is subject or person purporting to act therefore, breakdown of or injuries to the facilities used in the production, transportation, receiving, handling or delivery of such Product or any allocation programmed or rationing or priorities in effect pursuant to government direction or request or instituted in co-operation with any governmental authority or person purporting to act therefore.16.3 Nexotronix shall not be required to settle strikes, differences with workmen or government claims by acceding to any demands when in the discretion of Nexotronix, it would be inadvisable to accede to such demand. Notwithstanding the provisions of this clause 16.3, the Customer shall not be relieved of any obligation to make payment in the normal course as stipulated for Products/Services delivered to it.16.4 If, for any cause referred to in clauses 16.1 and 16.2 above, Nexotronix available supplies of Products/Services become, or in its opinion will become, unable to meet the requirements of all customers at any time, then Nexotronix shall be entitled to allocate those supplies among its customers (including the Customer and the Customer’s associated and affiliated companies) in such manner it deems fair and equitable in its sole and absolute discretion, and to vary its obligations to the Customer accordingly.16.5 In the event that Nexotronix is unable to comply with an order, for any reason which Nexotronix did not foresee/anticipate, Nexotronix shall be entitled to cancel the order by notice in writing. The Customer shall have no claims regarding such cancelled order and Nexotronix shall not be liable, in any form or manner, for any claims, losses, damages and/or any other negative inferences suffered by anyone as a result thereof.
17. SUSPENSION OF NEXOTRONIX’S OBLIGATIONS
17.1 If any amount owed by the Customer to Nexotronix, from any cause whatsoever, whether under an order or not, is not paid on due date then (and without prejudice to any other rights Nexotronix may have):17.1.1 all amounts then owed by the Customer from any cause whatsoever, shall immediately become due and payable; and/or17.1.2 Nexotronix may retain in its possession, any Products/Services of the Customer until all outstanding amounts have been paid; and/or17.1.3 until payment is made, Nexotronix may suspend the carrying out of any of its then uncompleted obligations from any cause whatsoever and whether under any order or not; and/or17.1.4 terminate any Credit Facility granted to the Customer, whether agreed or not; and/or17.1.5 retain any payment made by the Customer to Nexotronix prior to the due date of the payment in question.
18. CLIENT OBLIGATIONS
18.1 The Customer agrees to:18.1.1 Provide all necessary information and documentation required for the completion of the project;18.1.2 Ensure that all project requirements and specifications are accurate and complete. By signing off the quotation and upon issuing of a Purchase Order, the Customer accepts all terms and conditions herein as well as any terms and conditions included in the Project Contract; and18.1.3 Make timely payments as per the agreed schedule.
19. CANCELLATION/INDEMNITY
19.1 Nexotronix may cancel any order or any uncompleted part of an order for any reason whatsoever, including the following but not restricted thereto, and hold Nexotronix harmless from any claims, damages or liabilities arising from the Customer breach of these Terms:19.1.1 if the Customer commits a breach of any of the provisions of these Terms and Conditions (and/or the Credit Facility applicable between the Parties (if any));19.1.2 if the Customer being an individual, dies or is provisionally or finally sequestrated or surrenders his/her estate; or19.1.3 if the Customer being a partnership, the partnership is terminated; or19.1.4 if the Customer being a legal entity/juristic person, is placed under a provisional or final order of liquidation or business rescue; or19.1.5 if the Customer compromises or attempts to compromise generally with its creditors.19.2 Either party may terminate the Contract with written notice if the other party breaches any material term and fails to remedy such breach within 30 days.19.3 Nexotronix rights in terms of clause 19.1 shall not be exhaustive and shall be in addition to its other rights under these Terms and Conditions (and/or the Credit Facility applicable between the Parties (if any)) or otherwise.19.4 Upon the termination of an order for any reason whatsoever:19.4.1 all amounts then owed by the Customer to Nexotronix under the order shall become due and payable immediately, and19.4.2 Nexotronix may retake possession of any Products/Services sold where ownership has not passed.
20. JURISDICTION, ARBITRATION AND COSTS
20.1 Regardless of the Parties’ place of execution, performance or domicile, these Terms and Conditions and all orders and all modifications and/or amendments thereto shall be governed by and construed under and in accordance with the laws of the Republic of South Africa.20.2 Unless agreed otherwise in writing by Nexotronix, international customers:20.2.1 shall furnish South African Bank Guarantees with a financial institution within the Republic of South Africa, as specified by and acceptable to Nexotronix;20.2.2 shall choose a domicilium citandi et executandi at an address within the jurisdiction of the South African Courts.20.3 Unless agreed otherwise in writing by Nexotronix, all sums payable shall be converted to South African currency at a rate of exchange prevailing on date of Invoice, alternatively date of payment, whichever sum is the larger.
21. EQUIPMENT
21.1 All general containers and/or equipment of Nexotronix, used by it for its own purposes such as transport and delivery of Products/Services, shall remain the sole and exclusive property of Nexotronix. The Customer shall ensure that same is returned to Nexotronix only.21.2 For as long as any general containers and/or equipment of Nexotronix are in the possession, or under the control, of the Customer, the Customer shall apply and implement all reasonable measures to ensure that same is not damaged, destroyed or lost, in any form or manner, and remains safeguarded until returned to Nexotronix.
22. CPA AND NCA APPLICATION
22.1 It is noted that both the NCA and the CPA (amongst other laws) may find application to an order/transaction between the Customer and Nexotronix from time to time. As such, it is confirmed that nothing contained in these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) aims/intends to circumvent the NCA or the CPA in events where it may find application.22.2 Notwithstanding that stated in 22.1 above, the NCA and CPA shall only apply to an order/transaction between the Parties where it is specifically provided, via the said Acts, that same applies and then only to the extent that same applies. In no way manner or form is intended that either of these Acts (albeit it in whole or partially) apply voluntarily.22.3 Hence, for as far as the provisions of these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) contradict any provision of the CPA or NCA (or any other law) that apply to an order/transaction between Nexotronix and the Customer, the applicable provision/s of the said law shall prevail in respect of that order/transaction (but only to the extent of the conflict).
23. MATERIALS/INTELLECTUAL PROPERTY
23.1 The Customer acknowledges and agrees that copyright, and all other intellectual property rights, in, to and of, and the ownership of, any and all Materials made available and/or provided to him/her by Nexotronix, or on behalf of Nexotronix, from time to time, vests in and shall remain vested in Nexotronix. The provisions of this clause 23.1 shall apply to all Materials made available and/or provided by Nexotronix, irrespective of how, why and/or when the Materials where commissioned, produced and/or otherwise brought into being, and further irrespective of the reason and/or basis for the Materials being commissioned, produced and/or otherwise brought into being.23.2 Save with the prior written consent of Nexotronix, the Customer shall not at any time copy, duplicate or reproduce, in any manner or form whatsoever or for any reason whatsoever, the Materials made available and/or provided to him/her by Nexotronix from time to time or any part thereof, or make any adaptations or translations of such Material.23.3 The Customer acknowledges that the Products/Services are proprietary, involve trade secrets and is not in the public domain, and that the Nexotronix does not by this agreement convey or otherwise give up any rights of ownership of the Products/Services to the Customer or to anyone else. Accordingly, the Customer shall not deconstruct, reverse-assemble or reverse engineer any Products/Services.23.4 The Customer is granted a limited, non-exclusive license to use the deliverables for their intended purpose.23.5 The Customer shall not permit any person (except those in their employment) to use or have access to any part of the Products/Services and shall take all practicable steps to prevent any access to such by any unauthorised person
24. MISCELLANEOUS
24.1 Applicable LawThe validity of these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)), its interpretation, the respective rights and obligations of the Parties and all other matters arising in any way out of its performance or expiration or earlier termination for any reason, shall be determined in accordance with the laws of the Republic of South Africa.
24.2 CostsShould Nexotronix instruct its attorneys, collection agents, or any third party to recover any overdue amounts, or to take any action or initiate arbitration or legal proceedings for the enforcement or protection of its rights, Nexotronix shall be entitled to recover from the Customer all associated legal and/or collection costs. Such costs shall be recoverable on the attorney-and-client scale, or the highest permissible tariff/scale applicable, and shall include, where applicable, the fees of any advocates or counsel engaged.
24.3 Severability24.3.1 It is agreed that each clause and each sub-clause in these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) is severable, the one from the other;24.3.2 If any clause or sub-clause is found to be defective or unenforceable for any reason by any competent court, the remaining clauses shall continue to be of full and competent force and effect.
24.4 Entire Terms and Conditions (and Credit Facility (if any)) and non-variation24.4.1 These Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) represent all the terms and conditions pertaining to the sale of Products/Services between Nexotronix and the Customer. The Customer warrants that it understands all the terms and conditions and accepts them.24.4.2 No alteration or variation of these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) shall apply unless the alteration or variation in question is expressly agreed to or issued in writing by Nexotronix.
24.5 Confidentiality24.5.1 The Customer and Nexotronix agree to take all reasonable measures to preserve the confidential nature of an order and the Terms and Conditions (and the Credit Facility applicable between the Parties (if any)).24.5.2 The parties hereby undertake to each other for the continuance of this agreement and for an indefinite period from the expiry, cancellation, or termination of this agreement to:24.5.2.1 Keep confidential all information (written, including information contained in electronic format, or oral) concerning the business and affairs of the other that it shall have obtained or received from the other party ("the information").24.5.2.2 Not without the other's prior written consent to disclose the information in whole or in part to any other person save those of its employees involved in the implementation of this agreement and who have a need to know the same.24.5.2.3 Use this information solely in connection with the implementation of this agreement and not for its own or the benefit of any third party.
24.5.3 The provisions of this clause shall not apply to the whole or any part of the information to the extent that it is:24.5.3.1 Already known to the recipient without obligation of confidence.24.5.3.2 Independently developed by the recipient.24.5.3.3 Publicly available without breach of this agreement.24.5.3.4 Rightfully received from a third party.24.5.3.5 Released for disclosure by the disclosing party with its written consent.24.5.3.6 Required to be disclosed in a response to a valid order of court or other governmental agency or if disclosure is otherwise required by law.
24.5.4 The parties hereby undertake to each other to make all relevant employees and agents aware of the confidentiality of the information and the provisions of this clause and without prejudice to the generality of the foregoing to take all such steps as shall from time to time be necessary to ensure compliance by its employees and agents with the provisions of this clause.
24.5.5 Upon the expiration, cancellation, or termination of this agreement for any reason whatsoever, each party shall promptly return the information of the other, together with all copies, notes, and reproductions in connection with such information to the other.This obligation shall survive the termination of the Contract.
24.6 Assignment of rights and obligations24.6.1 The Customer may not cede or assign its rights or obligations in terms of any order or these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) to any third party without the prior written consent of Nexotronix, which consent shall not be unreasonably withheld.24.6.2 Nexotronix may cede and assign its rights and obligations in terms of any order or these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) to any third party without the prior written consent of the Customer.
24.7 RelaxationNo relaxation which Nexotronix may give at any time and on any occasion in regard to carrying out of the Customer’s obligations in terms of any order or these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)), shall prejudice or be a waiver of any of Nexotronix rights to enforce those obligations on any subsequent occasion.
24.8 CombinedThese Terms and Conditions constitute the entire agreement between the parties and shall be governed by and construed in accordance with the laws of the Republic of South Africa. Any disputes arising shall be subject to the exclusive jurisdiction of the courts of South Africa.
24.9 Change of ownershipThe Customer undertakes to notify Nexotronix, in writing, within twenty days of any change in ownership of The Customer’s business, or should The Customer be a company, of its share transactions whereby the majority shareholding is affected. The Customer acknowledges that immediately upon any change of Ownership in The Customer any outstanding amount whether due or not shall be deemed to be forthwith payable by The Customer to Nexotronix.
24.10 Change of addressThe Customer undertakes to notify Nexotronix in writing within 7 (seven) days of any change of address.
24.11 Domicilium24.11.1 The Customer chooses its Domicilium Citandi et Executandi (in other words, the address at which The Customer will accept all notices, legal documents, and the like, whether or not The Customer is still present at such chosen address) for all purposes arising out of this application at the physical address stipulated in this application.24.11.2 Notwithstanding the provisions of clause 24.11.1 above, The Customer hereby consents to the service of notices, legal processes, and all other communications contemplated in terms of this application, at the email address furnished by The Customer in this application, which email address shall, for all purposes, constitute a valid and effective domicilium citandi et executandi in terms of this agreement. Service by Registered Email shall be deemed to have been received on the date of transmission, provided that such transmission occurs during business hours, failing which, service shall be deemed to have occurred at 09:00 on the next business day.
25. CONSENT TO SHARING INFORMATION AND RETENTION PERIODS
25.1 For the purposes of making credit risk management decisions and preventing fraud, The Customer hereby warrants that Nexotronix has consent to:25.1.1 Carry out a credit enquiry on The Customer and the Directors/Members/Partners/Trustees/Principals of The Customer from time to time with one or more credit bureaus, credit information agents, credit insurance companies or other creditors (trade references) of The Customer’s in terms of this agreement.25.1.2 Nexotronix may transmit details to credit bureaus, credit information agents, credit insurance companies or other creditors of The Customer’s of how The Customer has performed in meeting his/her/its obligations in terms of this agreement.25.1.3 If The Customer fails to meet his/her/its commitments to Nexotronix, Nexotronix may record The Customer's non-performance with credit bureaus, credit information agents, credit insurance companies or other creditors of The Customer.
25.2 Such information shall be retained for periods as stipulated in any applicable law, but no longer than the duration of the validity of this agreement. Where The Customer has not used a facility under this agreement for 12 months, The Customer will be required to re-apply for such a facility.
25.3 Nexotronix is required to collect, process, and share The Customer’s personal information. The Customer’s personal information is collected and processed by Nexotronix staff, representatives, and sub-contractors and Nexotronix makes every effort to protect and secure The Customer’s personal information. The Customer is entitled at any time to request access to the information Nexotronix has collected, processed, and shared.
25.4 Nexotronix will only use The Customer’s personal information for the purpose for which it is required, to collect, process, and share The Customer’s personal information, in order to give effect to the provisions contained in this agreement. The Customer’s personal information is collected and processed by Nexotronix’s staff, representatives, and sub-contractors and Nexotronix makes every effort to protect and secure The Customer’s personal information. The Customer is entitled at any time to request access to the information Nexotronix has collected, processed, and shared.
26. FINANCIAL INTELLIGENCE CENTRE ACT (FICA)
26.1 The Customer acknowledges Nexotronix’s obligations in terms of section 29(1) of FICA and unconditionally and irrevocably indemnifies and holds Nexotronix harmless against any claim of whatsoever nature instituted against Nexotronix by a third party arising from any action taken by Nexotronix in discharging its obligations in terms of FICA. This specifically includes for The Customer declaring that the proceeds of the sale of any of the goods or services provided by Nexotronix to The Customer:26.1.1 are not received from unlawful activities, or26.1.2 are not linked to an offence of terrorist financing, or26.1.3 have not been used for money laundering purposes, or26.1.4 have not been used to assist an offence being committed that relates to money laundering or terrorist financing.26.2 It is further noted that Nexotronix is an Accountable Institution in terms of FICA. Any cash transaction in excess of the threshold prescribed from time to time will be reported to the Financial Intelligence Centre without any further reference to The Customer.
27. DEFAULT IN PAYMENT
In the event of The Customer defaulting in making payment of any amount that has become due and owing, then the full balance outstanding (whether due or not) will immediately become due and payable without notice to The Customer.
28. CONSENT TO JURISDICTION
Notwithstanding the amount which may at any time be owing by The Customer to Nexotronix the parties do hereby consent, in terms of Section 45 of the Magistrates Court Act (No 32 of 1944 as amended), to the Jurisdiction of the Magistrate’s Court for the determination of any action or proceeding which may be brought by Nexotronix against The Customer arising out of any transaction between the parties, it being recorded that Nexotronix shall be entitled at its sole discretion, but not obliged, to bring any action or proceeding in either the district or regional division of the said court.
29. DISPUTE RESOLUTION
29.1 Any dispute or claim arising from or related to this Agreement will first be submitted to a mediation process to attempt an amicable settlement between the Parties. This process is intended to resolve the issue without resorting to formal legal proceedings.29.2 The dispute will be referred to a skilled, experienced, and accredited mediator. Nexotronix may initiate the mediation by sending a written request (Request for Mediation) to The Customer. This request must clearly identify the nature of the dispute and propose at least three possible mediators for selection. The request must be delivered via email to The Customer’s designated address.29.3 Within five (5) Business Days of the Request for Mediation being sent, the following steps will occur:29.3.1 Each Party will appoint a senior representative with authority to negotiate a settlement and participate in the mediation process.29.3.2 Both Parties will arrange an urgent virtual pre-mediation meeting to occur within five (5) Business Days after the Request for Mediation is delivered. This is a preparatory step to facilitate the mediation process.29.4 The mediator will be agreed upon by both Parties. If the Parties are unable to reach an agreement, the Chairperson or Secretary of Mediation in Motion Mediators (NPO) may appoint a mediator upon written request from either Party.29.5 Once a mediator is appointed, both Parties will enter into a formal Agreement to Mediate, which ensures that the mediation will be confidential and conducted on a without-prejudice basis, meaning anything discussed cannot be used in later legal proceedings.29.6 Both Parties and their representatives agree to cooperate fully in the mediation process, with the aim of resolving the dispute efficiently and cost-effectively, striving to reach an amicable agreement.29.7 Unless agreed otherwise, the Parties will share the costs of the mediation equally. Each Party will bear its own legal costs if they choose to have legal representation at the mediation, as well as any additional expenses.29.8 The mediation process will begin as soon as possible and, unless agreed otherwise in writing, will be conducted within 15 (fifteen) Business Days from the delivery of the Request for Mediation.29.9 Formal legal proceedings cannot be initiated until:29.9.1 The Customer has failed to engage in mediation, or29.9.2 The mediator determines, in good faith, that an amicable resolution is unlikely to occur. However, if necessary, the Aggrieved Party may seek urgent court relief to compel compliance with the mediation process or proceed with formal legal actions. In cases where the non-compliant Party is at fault, they will be liable for the costs of such proceedings, even if they ultimately succeed in defending the case.29.10 If the mediation is unsuccessful, or if The Customer fails to engage, the dispute (or any unresolved part of it) can proceed to the next step of the dispute resolution process, as defined by the remaining provisions of this agreement.
End of Document
Version: 3.0Date: December 15, 2025Company: Nexotronix (Pty) Ltd.