FS SYSTEMS STANDARD TERMS AND CONDITIONS
The following terms shall have the meanings set out below unless the context requires otherwise:
1.1. “Agreement” or “Terms and Conditions” means these terms and conditions;
1.2. “Customer” means the party who affixed its name and signature to the Customer On-boarding Form;
1.3. “Customer On-Boarding Form” means the document headed “Customer On-boarding Form” completed by the Customer to which this Agreement acts as an annexure;
1.4. “Dijital Services” means the provision of various tracking and monitoring services including but not limited to the information provided un respect of the condition monitoring / environmental health status of equipment;
1.5. “Effective Date” means the date upon which the Customer on-Boarding Form is signed by Customer;
1.6. “FS Systems” or the “Company” means FS Systems Proprietary Limited, (registration number: 2019/312176/07), a private company duly incorporated in accordance with the laws of the Republic of South Africa;
1.7. “Products” means any and all products supplied or to be supplied by FS Systems to Customer, but excluding any Sera4 Products;
1.8. “Sera4 Products” means any and all Sera4 hardware inter alia including Sera4 padlocks and controllers;
1.9. “Services” means any and all services rendered or to be rendered by FS Systems to Customer, but excluding any Sera4 Services or Dijital Services;
1.10. “Sera4 Services” means any and all Sera4 services and software;
2. Unless agreed otherwise by both Parties in terms of a separate Agreement governing the subject matter hereto (“Separate Agreement”), in which case in the event that there is a conflict between the provisions of such Separate Agreement and these Terms and Conditions then the provisions of such Separate Agreement shall prevail, these Terms and Conditions shall apply to the purchase of Products by the Customer from FS Systems and, if applicable, to the supply of Services. They shall form part of every contract for the purchase of Products from FS Systems and/or the supply of Services by FS Systems to the Customer. The Agreement shall commence on Effective Date and shall subsist indefinitely until terminated in accordance with clauses 44 or 45 below. In the event that:
2.1. Customer purchases or rents Sera4 Products and Services now or in future, then Customer agrees to be bound by the Sera4 Terms and Conditions of Sale situated at (http://www.fs-systems.co.za/fss-sera4-terms-and-conditions-of-sale) and/or Sera4 Terms and Conditions of rental situated at (http://www.fs-systems.co.za/fss-sera4-terms-and-conditions-of-rental), as may be amended from time to time; and/or
2.2. Customer purchases Dijital Services now or in future, then Customer agrees to be bound by the Dijital Terms and Conditions situated at (https://www.fs-systems.co.za/fs-systems-dijital-customer-agreement), as may be amended from time to time.
3. The Customer warrants that the information completed by it and/or provided to FS Systems is truthful, complete and accurate in all respects, and is supplied voluntarily for the purpose of concluding this Agreement and, if applicable, obtaining credit from FS Systems in connection with the supply of Products from and rendering of Services by FS Systems.
4. FS Systems shall be entitled to rely upon all and/or any of the information supplied herein as being complete, true and accurate.
5. Customer is obliged to maintain the details supplied to FS Systems for the duration of this Agreement an any changes to Customer details should be communicated by the Customer to FS Systems as soon as reasonably possible.
6. In the instance where a Customer applies to FS Systems for the granting of credit, the Customer authorises FS Systems and its directors, officers, employees, consultants and agents (together, “representatives”) to investigate the Customer’s credit history in any manner and from any source deemed by FS Systems as appropriate.
7. If FS Systems (in its sole discretion) grants credit to the Customer, the Customer agrees to be bound by and to make payments in accordance with FS Systems' terms and conditions set out in this Agreement.
8. Notwithstanding any other provision contained in the Agreement relating to the approved credit facility of the Customer, the repayment thereof or otherwise, all invoices which result in the Customer’s account exceeding the prevailing credit limit (if any) granted by FS Systems to the Customer shall become due and payable upon presentation of the invoice.
9. Customer agrees to FS Systems and its representatives using the services and records of a registered credit bureau for information required for this original and future assessment of credit facilities. The Customer further gives authorisation to request/obtain a copy of any credit bureau or consumer report at any time for use in establishing and maintaining credit.
10. Customer agrees that FS Systems may disclose information regarding the Customer’s credit worthiness and conduct of the account to any registered credit bureau and/or other suppliers of the industry.
11. In addition to any other rights afforded to FS Systems in this Agreement or by applicable law and regulation, should Customer exceed its credit limit as indicated on the application form or its account becomes past due, the Customer agrees to and acknowledges that FS Systems has the right to refuse or cancel any orders for Products and/or Services (as the case may be) until such time as the account is satisfied in full. The Customer also agrees to and acknowledges that FS Systems has the right to take any advisable and/or necessary steps to collect all and any amounts outstanding on the Customer’s account.
12. Should the terms and conditions upon which FS Systems initially granted the credit limit change (for any reason or arising from any cause whatsoever in the discretion of FS Systems), then FS Systems may immediately revise or suspend such credit limit granted to the Customer and inform the Customer thereof in writing. In such event all amounts then due shall be immediately due and payable without further notice.
13. The Customer will forthwith upon request from FS Systems update its credit information for the purpose of increasing or maintaining credit limits. The terms and conditions of this Agreement shall apply to each such renewal, unless otherwise agreed in writing between the parties hereto.
14. As security for the due, proper and timeous repayment of all amounts (whether past or present) owing by the Customer to FS Systems pursuant to this Agreement, the Customer hereby cedes any and all right, title and interest in and to any book debts and other debts owed to the Customer by third parties (present and future) and claims of whatsoever cause or nature that the Customer may have against third parties and FS Systems (present and future) including any reversionary rights that there may be from time to time and to all rights of action arising thereunder. FS Systems hereby accepts the cession set out in this clause 14.
15. Accordingly, should the Customer fail to repay any or all amounts owed by the Customer to FS Systems timeously, Customer hereby irrevocably and unconditionally authorises and empowers FS Systems to take transfer of the ceded rights (as per clause 14) without any further authority or consent to collect such debts and or claims (as the case may be) in the Customers place and stead and for the benefit of FS Systems until such time as all amounts owed to FS Systems in terms of this Agreement been paid in full.
16. For each and every Customer request for Products and Services and subject to FS Systems’ ability to fulfil such request, FS Systems shall issue Customer with a written quotation (“Quotation”) outlining inter alia the quantum and description of the Products and/or Services to be supplied as well any specific terms and conditions relevant to the supply to which the Quotation relates, including (where applicable) the relevant Incoterm applicable for the delivery of the Products. Where “Incoterm” is referred to in any document or this Agreement, such term means Incoterms 2010
17. Customer’s acceptance (whether verbally, in writing or otherwise) or payment of such Quotation (whether or not fully, partially or on the basis of special payment terms having been agreed for payment) will constitute a separate and individual supply contract (“Supply Contract”), subject to the terms and conditions of this Agreement. Any additional or different terms and conditions (other than as set out in this Agreement) are null and void and expressly excluded and shall not form part of any Supply Contract.
18. Every FS Systems invoice for Services rendered or Products supplied in terms of any given Supply Contract shall be deemed to be accepted by the Customer if (i) the Customer has not expressly rejected such invoice in writing within 5 (five) business days from date of receipt or (ii) if the Customer uses the Products delivered to it or benefits from the Services in any manner or way whatsoever
19. Payments will be made in accordance with the payment terms stated in the Quotation, save where amended by written agreement between the parties hereto.
20. FS Systems shall be entitled, at its sole discretion, to levy interest at the Prime Rate plus 2% (two percent) on an amount of any invoice not paid within the period stipulated in any given invoice (as per clause 19 above). Any such interest not paid with the amount of the invoice to which it relates will be added to the subsequent invoice and will be payable with the amount of that invoice, failing which it will be capitalised and be subject to compound interest from the date of due payment of the invoice on which it is reflected. “Prime Rate” for purposes of this clause shall mean the variable interest rate quoted from time to time by the Company’s bankers, as its prime lending rate, which shall be a nominal annual compounded monthly rate, as calculated, compounded and charged by such bankers and as certified by any manager or director of such bankers (whose appointment need not be proved and whose certificate shall be final and binding on the Customer).
21. All payments received from or on behalf of the Customer shall be allocated first towards legal costs (if applicable and incurred by FS Systems in enforcing its rights in terms of this Agreement either as a result of a customer default or otherwise), thereafter interest, and lastly towards the capital amount owing in respect of the Customer’s outstanding account.
22. In the event that FS Systems incurs any disbursements and/or imposts in relation to the provision of the Services that have not been included in any Quotation rendered to the Customer, FS Systems shall be entitled to render supplementary invoices for such additional amounts.
23. Customer has no right to withhold payment for any reason whatsoever and therefore Customer is not entitled to set off any amount due to Customer by FS Systems against any amount owed by the Customer to FS Systems, notwithstanding any dispute between the parties, and nor shall any payment be withheld by virtue of any alleged counterclaim against FS Systems by Customer. FS Systems shall be entitled to, on written notice, offset any amounts owed by FS Systems to Customer (arising from any cause whatsoever) from time to time against amounts owed by the Customer to FS Systems (arising from any cause whatsoever).
24. FS Systems may at its sole discretion determine whether Customer has to pay a deposit to FS Systems and the amount of such deposit. FS Systems shall have the right (but not be obliged) to apply the whole or part of any deposit towards payment of any liability (arising from any cause whatsoever including payment for the Products or Services) owed by Customer to FS Systems arising out of this Agreement or any Supply Contract. All deposits paid are non-refundable unless FS Systems (i) cancels a Supply Contract or (ii) cannot fulfil a Request in full, in which instances any remaining portion of the deposit (following settlement of all liabilities as aforesaid) shall be refunded to the Customer within a reasonable period of time.
25. In the event of a dispute arising between the parties regarding any amount outstanding pursuant to these terms and conditions, such dispute shall be referred for determination to an auditor of FS Systems’ choice who will provide a signed certificate determining the outstanding amount and interest thereon and whose decision, acting as expert and not as arbitrator, shall be prima facie proof of the outstanding amount and interest thereon and will as such be binding on the parties.
Delivery on Time and in Accordance with Order
26. The delivery date, time, place and quantities for Products and/or Services (as the case may be) shall be as set out in the Quotation. Customer acknowledges that expected delivery times and quantities are estimates only and may vary due to circumstances beyond FS Systems’ control and/or the availability of the Products and/or Services (as the case may be). FS Systems shall not incur any liability of any nature in the event of such circumstances preventing FS Systems from delivering either the correct quantities of the Products or late delivery thereof and/or performing the Services on the due date thereof. Customer shall not be entitled to cancel this Agreement or an applicable Supply Contract on account of late or under-delivery or a failure to render the Services on the due date thereof
27. FS Systems agrees to take all actions reasonably necessary and appropriate to ensure that Products are received by the Customer and Services performed to Customer as required under the relevant Supply Contract. FS Systems will inform Customer promptly of any occurrence which will or may result in any delay of delivery or performance at any time or which will or may result in FS Systems’ inability to fulfil the terms as specified in the Supply Contract and FS Systems shall not in any circumstances whatsoever be liable for any delay in the supply of Products and/or rendering of Services. Where any delays are caused by Customer, whether directly or indirectly, Customer shall be liable towards FS Systems for any and all costs of whatsoever nature incurred by FS Systems as a result of such delay. CUSTOMER HEREBY INDEMNIFIES AND HOLDS FS SYSTEMS HARMLESS (ON DEMAND AND ON A RAND FOR RAND BASIS), TO THE EXTENT PERMITTED BY LAW, AGAINST ANY CLAIMS THAT CUSTOMER OR ANY THIRD PARTY MAY HAVE ARISING OUT OF ANY LATE OR UNDER-DELIVERY OF PRODUCTS OR FAILURE BY FS SYSTEMS TO RENDER THE SERVICES ON THE DUE DATE THEREOF.
28. Any modification of the Products ordered and/or Services performed in terms of an Order and requested by the Customer shall require the prior written consent of FS Systems.
Title and Risk; Intellectual Property
29. Ownership of and title to the Products shall not pass to the Customer until the purchase price in respect of the Products in question have been paid in full.
30. Save as otherwise agreed between FS Systems and the Customer, the time at which the risk of damage to or loss of the Products shall pass to the Customer shall be upon the delivery of the Products to the Customer’s in accordance with the relevant Incoterms.
31. FS Systems is entitled to at any time enter all and any premises owned, leased or utilised by the Customer at any time during normal business hours to remove all and any Products supplied in terms of the Agreement that have not been paid for in part or in full by the Customer. The Customer herewith consents to such removal. For the avoidance of doubt, all Products bearing labels of FS Systems equivalent to those supplied in terms of the Agreement situated on any such premises owned, leased or utilised by Customer shall be deemed to have been supplied by FS Systems in terms of the Agreement unless FS Systems confirms otherwise in writing.
32. FS Systems retains all intellectual property rights of whatsoever nature in its drawings, specifications, data and all other information and documents in relation to its Products and Services.
33. FS Systems’ trademarks and names shall not be used by Customer without the prior written consent of FS Systems. Customer agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the Products and/or Services provided.
34. No right or license is granted in favour of or between the parties hereto under this Agreement in relation to any patent, trademark, copyright, registered design, or other intellectual property right.
Inspection and Deficiencies
35. Customer shall be obliged to inspect the Products upon the delivery thereof and indicate on the waybill or delivery note if there is any damage and/or deficiencies to the Products delivered. The Customer shall immediately provide written notice of any deemed damage or deficiencies to FS Systems describing the aforesaid damage and/or deficiency in detail, failing which it will be deemed that the Products are in good and working order.
36. If the Products delivered are not suitable for its intended purpose, then Customer shall, after receiving FS Systems’ written authorisation (which may be withheld in FS Systems’ sole discretion), return such Products to FS Systems at its own cost whereupon FS Systems shall effect the necessary remedial works to such Products and procure the delivery of such rectified Products for the Customer at the Customers’ cost. Notwithstanding, it remains the responsibility of Customer to ensure Products ordered are fit for purpose for which Customer requires such Products.
37. FS Systems shall be entitled to verify claims as to any and all such alleged defective or damaged Products and/or Services performed by reviewing the relevant Product and/or Services and underlying data and records. The Customer shall furnish to FS Systems upon reasonable request, any other information received by the Customer or any other third party who will or may be helpful to FS Systems in assessing alleged defective Products and/or Services and afford FS Systems all requested assistance in performing remedial work.
38. The parties acknowledge that FS Systems is a reseller of the Products and not the OEM.
39. FS Systems shall endeavour to secure warranties from Product suppliers (“Supplier Warranties”) that the Products shall be free from material defects.
40. FS Systems warrants, on a back-to-back basis in line with and limited to the terms of such Supplier Warranties (“Warranty Term”) that the Product (other than consumables) shall be free from material defects and, subject to clause 41 below, it shall be FS Systems’ sole responsibility to repair or replace such defective Product at no cost to the Customer.
41. FS Systems reserves the right after the first anniversary of the date upon which the Product has been delivered to Customer to bill Customer for travel at the then prevailing rates of FS Systems and other incidental costs incurred in order to collect or replace such defective Products.
42. In the event that FS Systems is required to install the Products then FS Systems warrants for a period of 12 (twelve) months following the date upon which such Product(s) are installed such installation works are free from material defect.
43. For the avoidance of doubt, the warranty provided in clause 42 above shall be limited to installation works completed by FS Systems.
44. Without prejudice to any other rights of the parties under this Agreement, should Customer:
44.1. be placed in liquidation or under business rescue, whether provisional or final, or has passed a resolution for its voluntary winding-up (or, in each case, the equivalent or similar nature under the laws of the jurisdiction in which the Customer is registered or its principal place of business);
44.2. default on payment for the Products and/or Services; or
44.3. commit a breach of any terms (other than payment terms) of this Agreement and fails to remedy that breach within 7 (seven) days following receipt of a written notice by FS Systems; then
FS Systems may:
44.4. terminate this Agreement or claim specific performance; and/or
44.5. charge interest on any payments that are in arrears at a rate equal to 5% (five percent) above the Prime Rate; and/or
44.6. immediately suspend or terminate the Services and take possession of the Products (in accordance with clause 31).
45. FS Systems shall be entitled to cancel this Agreement at any time with or without cause, by giving 3 (three) months’ written notice to that effect to Customer. Any and all obligations on the part of the parties in respect of this Agreement that accrued before the date of cancellation shall remain enforceable between the parties hereto.
Claims and Indemnities
46. CUSTOMER HEREBY INDEMNIFIES AND HOLDS FS SYSTEMS HARMLESS (ON DEMAND AND ON A RAND FOR RAND BASIS) TO THE MAXIMUM EXTENT PERMITTED BY LAW AGAINST ANY AND ALL CLAIMS OF WHATSOEVER NATURE AND HOWSOEVER ARISING WHICH MAY BE MADE AGAINST FS SYSTEMS BY CUSTOMER (OR ANY THIRD PARTY) ARISING FROM THE SALE OR USE BY CUSTOMER OF ALL PRODUCTS, ITEMS, EQUIPMENT, GOODS AND/OR APPARATUS SOLD BY FS SYSTEMS TO CUSTOMER, INCLUDING, WITHOUT LIMITATION, THE INFRINGEMENT OF ANY PATENT, REGISTERED DESIGN, REGISTERED TRADE MARK OR COPYRIGHT, AND OR THE PRODUCTS AND/OR SERVICES BEING DEFECTIVE.
47. NOTWITHSTANDING THE AFORESAID, CUSTOMER, TO THE MAXIMUM EXTENT PERMITTED BY LAW:
47.1. ACCEPTS LIABILITY FOR ALL CLAIMS, ACTIONS, LIABILITIES, DAMAGES, COSTS AND EXPENSES ASSERTED AGAINST, IMPOSED UPON OR INCURRED BY FS SYSTEMS RESULTING FROM THE SUPPLY AND/OR USE OF THE PRODUCTS OR THE RENDERING OF THE SERVICES AND ARISING OUT OF ANY HARM ALLEGED OR PROVEN BY ANY CONSUMER OR OTHER PERSON CONTEMPLATED IN TERMS OF THE CONSUMER PROTECTION ACT NO. 68 OF 2008 (“CPA”), WHERE “HARM” IN THIS CLAUSE 47.1 BEARS THE MEANING IN THE CPA; AND FURTHER
47.2. HEREBY INDEMNIFIES AND HOLDS FS SYSTEMS HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES THAT ARISE FROM CLAIMS, LOSSES, DAMAGES, EXPENSES AND COSTS (INCLUDING INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES AND ANY LIABILITY WHICH MAY BE INCURRED BY FS SYSTEMS BY OPERATION OF SECTIONS 55 AND 56 AND/OR SECTION 61 OF THE CPA) WHATSOEVER AND HOWSOEVER ARISING.
Limitation of Liability
48. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, FS SYSTEMS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CAUSE WHATSOEVER. NOTWITHSTANDING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW AND SHOULD IT BE DETERMINED THAT FS SYSTEMS OWE ANY LIABILITY TOWARDS CUSTOMER, THEN FS SYSTEMS’ LIABILITY TO CUSTOMER (HOWSOEVER ARISING) SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT OR THE PARTICULAR SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTH PERIOD LEADING UP TO THE DATE ON WHICH ANY SUCH CLAIM ARISES UNDER THIS AGREEMENT.
Law and Jurisdiction
49. The terms of any Supply Contract (including these terms and conditions) shall be governed by and construed in accordance with the laws of South Africa. The terms and conditions set out in the United Nations Convention for the International Sale of Goods (CISG) and the Unidroit-Agreement dated May 28th, 1988 are hereby expressly excluded.
50. Customer and FS Systems agree that the courts of South Africa shall have exclusive jurisdiction for any action or proceedings commenced under this Agreement and, in particular, any Supply Contract.
51. Notwithstanding any provision to the contrary in these terms and conditions (save for clause 23 above), should any dispute arise between the parties with regards to the purchase of Products and/or the rendering of the Services (save for any dispute with regards to any amount outstanding as provided for in clause 23 above), the parties shall, in the first instance, act in good faith in an attempt to resolve the dispute amicably between themselves. This entails one of the parties inviting the other in writing to meet and to attempt to resolve the dispute within ten (10) business days from date of written invitation. If the parties are unable to resolve the dispute amicably between themselves within such time period, either party shall be entitled to submit, by written notice to the other party, that the dispute be referred to arbitration in terms of this clause to be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa for Commercial Arbitrations by an arbitrator appointed by the aforesaid Foundation. The arbitration shall be held in Cape Town, South Africa. The arbitrator's award shall be final and binding between the parties and shall be capable of being made an order of court and the arbitrator shall be entitled to make such award, including an award for specific performance, damages, costs, or otherwise, as he in his discretion may deem fit and appropriate. No provision in this arbitration clause shall be taken as prohibiting either party from approaching the appropriate court in South Africa for the purposes of any interim or interdictory relief.
52. FS Systems reserves the right to make announcements, press releases, publications, presentations and other public statements that reference Customer as a customer using the Products and Services, without Customer’s prior written approval, provided that FS Systems does not disclose Customer’s confidential information in the course of such publicity or misrepresent Customer’s relationship with FS Systems.
53. Customer may not cede, delegate or assign any of its rights and/or obligations under this Agreement or a relevant Supply Contract, in whole or in part, to any third party without the prior written consent of FS Systems, which consent may at FS Systems’ sole discretion be withheld.
54. FS Systems may freely cede, delegate or assign any of its rights and/or obligations under this Agreement or any relevant Supply Contract to any Third Party without consent from Customer.
No Implied Warranties
55. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, ENDORSEMENTS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED.
56. IF FS SYSTEMS AGREES TO PROVIDE TO, OR INSTALL ANY THIRD-PARTY PRODUCT, ON BEHALF OF CUSTOMER, FS SYSTEMS DOES SO AS A SERVICE TO CUSTOMER, AND CUSTOMER ACKNOWLEDGES AND AGREES, THAT FS SYSTEMS HAS NO ABILITY TO CONTROL THE DESIGN OR PERFORMANCE OF SUCH THIRD-PARTY PRODUCT, THAT FS SYSTEMS PROVIDES THE THIRD-PARTY PRODUCT ON AN “AS IS” BASIS AND THAT NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, FS SYSTEMS SHALL HAVE NO LIABILITY FOR THE DESIGN OR PERFORMANCE OF THAT THIRD-PARTY PRODUCT WHATSOEVER, AND THAT FS SYSTEMS’ SOLE RESPONSIBILITY WITH RESPECT TO THE THIRD-PARTY PRODUCT, INCLUDING WITHOUT LIMITATION, ITS DESIGN OR PERFORMANCE, SHALL BE TO PASS THROUGH THE BENEFIT OF ANY WARRANTY PROVIDED BY THE SUPPLIER OF THE THIRD-PARTY PRODUCT TO CUSTOMER.
Exclusion of Liability for Specified Persons
57. IN NO EVENT WILL FS SYSTEMS OR ITS SUPPLIER`S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AUTHORISED REPRESENTATIVES HAVE ANY PERSONAL LIABILITY UNDER OR IN RELATION TO THIS AGREEMENT. THE PERSONS MENTIONED IN THIS PROVISION SHALL BE DEEMED TO BE THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT SOLELY FOR THE PURPOSES OF OBTAINING THE BENEFIT OF THIS PROVISION.
59. By signing and agreeing to these Terms and Conditions, Customer agrees to receiving further and applicable marketing material from time to time, and should Customer no longer want to receive said further and applicable material, Customer is entitled to instruct FS Systems to opt-out accordingly, as well as destroy any personal and identifiable data held and/or under the control of FS Systems.
60. Customer shall take all reasonable steps to (a) protect and hold FS Systems’ Confidential Information in confidence and prevent its disclosure to third parties unless such third parties are known by Customer to be under a duty of confidentiality to FS Systems; and (b) restrict its use to those purposes consented to in writing by FS Systems or permitted by this Agreement; provided, however, that Customer shall not be required to protect or hold in confidence any Confidential Information which (i) is or becomes available to the public without the fault of Customer, (ii) is independently developed by Customer, (iii) is disclosed to Customer by a third party known to Customer not to be under any duty of confidentiality to FS Systems with respect to such information or (iv) except as may otherwise be required by law. “Confidential Information” means Customers’ know-how, trade secrets, data, proprietary and business information and all other information advised by FS Systems to be confidential information or which, by its nature is or should be considered confidential.
61. Notwithstanding any express or implied provisions of this Agreement to the contrary, or any latitude or extension of time which may be allowed by FS Systems to Customer hereto in respect of any matter or thing that the parties are bound to perform or observe in terms hereof, shall not under any circumstances be deemed to be a waiver of FS Systems’ rights.
62. No alteration, cancellation, variation of, or addition hereto shall be of any force or effect unless reduced to writing and signed by both parties to this Agreement.
63. All notices or other communications required or permitted hereunder shall be in writing and given in the English language and shall be either personally delivered, transmitted by pre-paid registered mail (airmail if international) or transmitted by email to details set forth at the beginning of this Agreement.
64. Notices given by personal delivery shall be deemed to have been received at the time of delivery. Notices given by local mail or airmail shall be deemed to have been received within 5 (five) days and 14 (fourteen) days respectively following the date of posting and notices given by e-mail shall be deemed to have been received on the date following transmission.
65. Reference to “writing” or “written” means in writing signed by the issuing party and served by any means including any form of electronic data interchange, i.e., the transmission of data via electronic communication links between the parties or other machine-readable data media.
66. “Specifications” used herein means the technical description (including relevant drawings) of the Products (including any packaging) and/or Services including but not limited to quality assurance programs, data, material content, method of manufacture, testing and generally describing the functional, technical and finished products requirements.
67. Each provision in this Agreement is severable, the one from the other, and, if at any time any provision is or becomes or is found to be illegal, invalid, defective or unenforceable for any reason by any competent court, the remaining provisions shall be of full force and effect and shall continue to be of full force and effect.
68. This Agreement replaces any and all pre-existing agreements entered into between the parties hereto in respect of the purchasing of Products and/or performance of Services as from the Effective Date. Customer confirms that it has no rights under or claims of any nature whatsoever against FS Systems under any pre-existing agreements.
As updated 13.10.2021