STANDARD TERMS AND CONDITIONS (FOR GOODS AND SERVICES)

These Standard Terms and Conditions read together with any signed proposal, quotation and/or accepted Order (“Agreement”) is entered into by and between the entity requesting the supply of Goods and / or Services from Impression (“Customer”) and any company within the Impression  (“Impression”) (hereinafter collectively referred to as “the Parties”), for the supply of the Goods and / or Services described in any signed proposal, quotation and/or accepted Order, on the terms and for subject to the conditions in this Agreement.
 

1. Application: This Agreement shall apply to the supply of all Goods and Services to the Customer by Impression, to the exclusion of all other terms and conditions, including those of the Customer.

 

2. Orders: Any order submitted by the Customer ("Order") shall be in writing and shall not be binding on Impression until a duly authorized Company representative has accepted such order in writing ("Order Acceptance"). Order Acceptances shall be issued in the sole discretion of Impression, and the Customer shall have no expectation that Impression shall accept any particular Order. Upon the issuing of an Order Acceptance, each Order shall constitute a separate contract between Impression and the Customer, governed by this Agreement. Either Party may request changes to an Order prior to delivery. Neither Party shall be bound by any changes unless they are in writing and signed by both Parties. The Parties shall refrain from requesting unnecessary variations and/or amendments to the Order.

 

3. Delivery Dates and Completion Dates: Delivery date(s) for the Goods and completion date(s) for the Services quoted in an Order Acceptance are estimates and are not binding on Impression. Time shall not be of the essence for any supply of the Goods and / or Services. Delivery will be deemed to have taken place upon physical delivery of the Goods. Delivery date(s) for the Goods shall be specified in the Order Acceptance. Completion will be deemed to have taken place upon signature by the Customer of Impression’s acceptance documentation, or upon the commencement of beneficial use of the Services by the Customer. Completion date(s) for the Services shall be specified in the Order Acceptance.

 

4. Title and Risk: All Goods supplied by Impression shall remain the property of Impression until such time as payment for the Goods, including interest thereon, if applicable, has been received by Impression in full. The Customer is prohibited from reselling any Goods in respect of which ownership has not yet passed to the Customer, under any circumstances, to any third party without Impression’s prior written consent. The risk of damage to, destruction or theft of the Goods shall pass to the Customer, on delivery.

 

5. Service Levels: Impression shall perform the Services in accordance with the service levels as specified in the Order Acceptance.

 

6. Warranties: The Good and / or Services are supplied by Impression to the Customer on an “as is” basis. Impression makes no warranties whether express or implied, statutory, or otherwise. The implied warranty of fitness for a particular purpose is explicitly excluded. The Customer hereby acknowledges and agrees that its sole remedy for any proven defective Goods and / or Services in terms of this Agreement is for Impression to repair / replace the defective Goods or redo the defective Services or refund the Customer the amounts already paid by the Customer to Impression for the defective Goods and / or Services. If a refund is made, Impression shall be entitled to, but not obliged to, immediately terminate this Agreement by way of written notice to that effect to the Customer.

 

7. Force Majeure: Impression’s obligations shall be deemed to have been suspended to the extent that and for so long as Impression is prevented from fulfilling them because of an occurrence beyond the reasonable control (directly or indirectly) of Impression or any regulations implemented by the South African government or the government of a country where Impression is required to perform its obligations. If the event in question prevails for a continuous period of thirty (30) days, the Parties will consult with each other with a view of arriving at a mutually acceptable arrangement within a period of fourteen (14) days thereafter, failing which, either Party will be entitled but not obliged to terminate the Agreement forthwith on written notice, without incurring any liability towards the other Party.

8. Customer’s Undertakings: The Customer undertakes to procure and maintain all authorizations, consents, approvals, resolutions, licenses, exemptions, filings, and registrations. The Customer undertakes to comply with all relevant laws, regulations and standards relating to the Goods, including but not limited to the loading, storage, stacking, handling and use thereof, and to take proper notice of the warnings provided by Impression in relation to any hazards associated with the Goods or the handling or use thereof. The Customer shall do all things reasonably required to provide the Impression’s consultants with free and uninterrupted access to the Customer’s premises during working hours, at no extra cost to Impression, for them to fulfil their obligations in terms hereof, and to provide necessary information as may be reasonably required by the Impression’s consultants.

 

9. Prices: Impression shall from time-to-time issue price lists in respect of the Goods. Impression shall provide the prevailing price list to the Customer on request. All quotations issued by Impression shall remain valid until the earlier of: (i) the expiry of a period of 30 (thirty) days; or (ii) the effective date of a new price list. All quotations are subject to the availability of the Goods at the time of the Order. All prices are based on the prevailing exchange rate on the day on which the quotation is issued and in the event of any irregular variation in the rate of exchange during the validity period of Impression's quotation, Impression reserves the right to re-issue its quotation reflecting the amended rate of exchange. All prices quoted by Impression are exclusive of value added tax levied in terms of the Value-added Tax Act, 89 of 1991, as amended. Notwithstanding the prices set out in the quote or the prevailing price list, the purchase prices payable in respect of Goods shall be set by Impression in the relevant Order Acceptance.

 

10. Billing for Services: The Services will be delivered and billed on a time-and-materials basis. All work completed will be verified by the Customer and will be signed off upon presentation. Signature of a duly completed time sheets by the Customer indicates acceptance that the Services has been supplied as agreed.

 

11. Working Hours: For the purposes of this Agreement, the normal working hours of Impression are defined as an eight (8) hour day within the times of 08h00 to 17h00, on a five day a week basis form Monday to Friday.

 

12. Payments: Payment for the Goods and / or Services shall be due and payable within 30 (thirty) days of the date of invoice. All payments shall be made free from bank charges, deduction or set-off of whatsoever nature. The Customer shall not be entitled to withhold payment of any amounts due to Impression for any reason whatsoever, unless required by law

 

13. Forex Movements

Where the Goods are being sourced from overseas, any variation between the foreign exchange rate at the date of invoice and the foreign exchange rate at the actual date of payment by the Customer shall be for Customer’s account.

 

14. Withholding Tax

    • Unless otherwise stated in an Order, all amounts shall exclude taxes, rates, or other levies, all of which shall be payable by the Customer, in addition to the prices for the Goods and / or Services, to ensure the full prices payable are received without deductions of any kind.

    • Where a double taxation agreement exists between the Parties respective jurisdictions, the Customer may deduct the applicable taxes and provide Impression with a withholding tax certificate and proof that it has made the applicable payments therein to the relevant tax authority, not later than the end of the month following the month in which such payment is made by the Customer.

    • If Impression is unable to claim relief (either by way of credit relief, expense relief, unilateral relief, or other similar double tax relief system), Impression shall have the right to notify the Customer and provide the Customer with documentary evidence thereof. The Customer shall then be required to pay to refund Impression the amounts reflected in the withholding tax certificate without further deduction of withholding tax.

 

15. Delayed Payments

    • The Customer agrees that interest shall be levied at the prime lending rate as quoted by the Standard Bank of South Africa from time to time, plus 2% on all overdue payments, calculated daily and compounded monthly in arrears, from the date on which payment was due to the date of actual payment.

    • Should the Customer fail to comply with any terms of the conditions of this Agreement, Impression will have the right to suspend all its obligations due to the Customer under this Agreement until such terms and/or conditions have been fully complied with.

    • The Customer indemnifies and holds Impression harmless against any losses or damages suffered by Impression because of the suspension of any of its obligations due to non-payment.

 

16. Disbursements: Reasonable travel and accommodation at the request of the Customer, will be for the cost of the Customer. All claims for expenses as set out herein shall be supported by detailed records and documentation. It is agreed that wherever possible, that the Customer shall directly make the required bookings for such travel and accommodation. If Impression is required to make any such bookings, an administrative charge of 5% will apply.

 

17. Confidentiality: Each Party agrees not to use, disclose, or divulge, directly or indirectly any confidential information disclosed by a Party without the prior written consent of the disclosing Party. “Confidential Information” means intellectual property, Data, Personal Data, proprietary information, and trade secrets of a Party. Reports complied by Impression for the Customer are confidential and may not be disclosed to any third party by the Customer without Impression's prior written consent.

 

18. Intellectual Property: The Customer acknowledges that Impression’s intellectual property is and shall remain Impression’s intellectual property, including any developments and / or enhancements thereto, and the Customer shall not acquire or be entitled to claim any right or interest therein or in any way question or dispute ownership thereof. Copyright in any documents, drawings and designs created by Impression for the Customer shall automatically vest in the Customer, provided that the Customer shall have no right to use the documents, drawings, and designs whilst any payments remain outstanding.

 

19. Data Protection: For the purposes of this clause: “Data” means any data (including Personal Data), “Personal Data”, “Process” and “Processing” are as defined in the Protection of Personal Information Act, 2013 (Act No. 4 of 2013) (South Africa), and "Data Protection Laws" means all applicable laws relating to data protection, privacy, and security when processing Data.

 

• The Customer warrants that any Data provided by the Customer to Impression does not and will not infringe the intellectual property rights of any other person, breach any confidentiality obligations owed by the Customer or breach any Data Protection Laws applicable to that Data.

• The Customer acknowledges that any Data provided by the Customer to Impression may be located, hosted, managed, or accessed on a variety of systems, networks and facilities used by Impression worldwide, in the performance of its obligations under this Agreement, or provided to a third party to the extent necessary for the third party to perform its obligations under this Agreement e.g., Impression affiliates, subcontractors and suppliers. The Customer undertakes to advise Impression if any Personal Data is included in the Data provided by the Customer to Impression, and to promptly obtain any consent and authorisation required by Impression to Process the Personal Data in compliance with the applicable Data Protection Laws in the jurisdictions where Impression operates.

• The Customer indemnifies Impression and agrees that Impression, to the extent permitted by law, will not be liable for any complaint, claim or action arising from any action or omission by Impression to the extent that such action or omission is a result of the Customer failing to disclose to Impression that Personal Data was included in the Data.

• Impression undertakes to comply with any Data Protection Laws, to obtain the Customer’s consent prior to Processing any Data provided by the Customer, to only Process the Data to the extent necessary to performance of its obligations under this Agreement, to implement and take appropriate and reasonable technical and organisational measures, in accordance with its security policies as amended from time to time, to protect the Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and to ensure that all its systems and operations which it uses to provide the Goods and Services, including all systems on which the Data is stored and Processed in the performance of its obligations under this Agreement, which shall at all times be of a minimum standard required by all applicable Data Protection Laws.

• In the event of any unauthorised use of the Data, which is or is reasonably likely to constitute a breach of this clause 19 (“Data Breach”), Impression shall, at its sole cost, immediately notify the Customer in writing and take such steps as the Customer may reasonably require in order to remedy or mitigate the effects of such actual or threatened breach, and use all reasonable commercial endeavours to assist the Customer in recovering and preventing the use, dissemination, sale or other disposal of the Data.

 

20. Breach and Termination:

    • Should either Party (the “Defaulting Party”) commit a material breach, then the other Party (hereinafter referred to as the “Aggrieved Party”), shall be entitled to:

      • suspend its obligations in the Order;

      • sue for immediate specific performance of any of the Defaulting Party’s obligations under the Order; or

      • cancel the Order, in which case written notice of the cancellation shall be given to the Defaulting Party, and the cancellation shall take effect on the giving of the notice,

without prejudice to, and in addition to any other rights and remedies that the Aggrieved Party may have to claim damages.

• A material breach shall occur if the Defaulting Party:

  • fails to make a payment by the due date or commits a breach of any of its material obligations and fails to remedy that breach within 14 (fourteen) days of a written notice to do so;

  • enters into or attempts to enter into any scheme similar to or in the nature of a composition, compromise or scheme of arrangement, release or novation with any or all of its creditors;

  • is placed in provisional or final liquidation or under provisional or final receivership or administration or Business Rescue within the meaning of section 128(1)(f) of the Companies Act, 71 of 2008 as amended (South Africa).

  • takes steps to de-register itself or is de-registered;

  • ceases trading or threatens to cease conducting its normal line of business;

  • suspends, or threatens to suspend, payment of its debts; or

  • is Financially Distressed within the meaning of section 128(1)(f) of the Companies Act, 71 of 2008 as amended (South Africa).

• If any third-party licence agreement for any software in respect of which the Goods and/or Services are supplied terminates for whatever reason, the Order shall terminate with immediate effect.

 

21. Consequential and Indirect Loss: Impression shall not be liable to the Customer for any loss of profits, loss of business, depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of use, interruption or reduction of operation, loss or corruption of data (including the recovery thereof), loss of production, loss of contracts or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses that may be suffered by the Customer, even if advised of the possibility of such damages and regardless of whether the action is brought in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise.

 

22. Limit of Liability

 

• Impression’s maximum liability, arising in connection with the performance or contemplated performance of the Agreement shall not exceed the amount of fees paid to Impression under the Agreement within the preceding 12 (twelve) month period, or the value of an Order (whichever is the lesser amount).

 

• Nothing contained in this clause shall limit Impression’s liability in respect of death or injury of any person, or damage to property, fraud, unlawful acts, wilful misconduct, and gross negligence, or where it would be unlawful for Impression to attempt to do so.

 

23. Assignment: It is expressly recorded that Impression may assign, cede, delegate, or otherwise transfer its rights and obligations in terms of this Agreement to an Impression affiliate, without the prior written consent of the Customer, if Impression notifies the Customer of such event within a reasonable time of such event occurring. For the avoidance of doubt, Impression may assign, cede, delegate, or otherwise transfer its rights and obligations to an Impression affiliate any time during the term of this Agreement.

 

24. Non-Solicitation: Neither Party shall, for the duration of the Agreement and for a period of 12 (twelve) months thereafter, seek to employ either directly or indirectly, any member of the other Party’s staff (permanent, temporary or on contract) who are directly involved in the execution of this Agreement. In the event of a breach of this clause, the defaulting Party shall pay to the other Party, a placement fee equal to 100% (one hundred percent) of the employee’s last gross annual remuneration. This clause shall not however apply to a bona fide response by such employee to an arm’s length job advertisement.

 

25. Addresses: The Parties choose their respective domicilium addresses for all purposes hereunder at the addresses as set out in the hereunder:

 

Impression:

 

1st Floor Block E, Pinmill Farm

164 Katherine Street, Barlow Park

Sandton

Gauteng

2148

Customer:  The Customer’s registered business address.

 

26. Governing Laws and Dispute Resolution: This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa, and the Parties agree that any dispute, controversy, or claim arising out of or related to this Agreement will be submitted to the Gauteng Local Division of the High Court of South Africa, Johannesburg.

 

27. Anti-Corruption: For the purposes of this clause: “Anti-Corruption Laws” means the Prevention and Combating of Corrupt Activities Act, 2004, as amended (South Africa). Neither Party shall engage in any unlawful trade practices or any other practices that are in violation of the Anti-Corruption Laws in connection with any actions or activities associated with this Agreement or in connection with the relationship between the Parties.

 

28. Code of Conduct: The Parties agree to refrain from engaging in any act or omission that might adversely affect, or damage the other Party’s good name, brand, goodwill and/or reputation.

 

29. Variation: No agreement to vary, add to or cancel this Agreement shall be of any force or effect, unless recorded in writing and signed by or on behalf of all of the Parties.

 

30. Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party last signing one of the counterparts.

 

31. Signature: The persons signing any Orders in a representative capacity warrant their authority to do so.