GENERAL TERMS

1. INTRODUCTION

1.1. These General Terms and Conditions (“General Terms”) apply to the Customer (“Your” or “You”) and Even Flow Distribution (Pty) Ltd (“Even Flow”, “We”, “Us” or “Our”) for purposes of Even Flow making Goods available to You.
1.2. In order for You to purchase Goods from Even Flow, for resale to the End User, You agree to these General Terms.
1.3. You agree and accept that these General Terms shall be binding on the earlier of any of the following events:
1.3.1. The activation of Your account by Even Flow;
1.3.2. Upon placing an Order with Even Flow; or
1.3.3. You using, reselling or provisioning any Goods.
1.4. It is Your responsibility to determine whether the Goods are suitable and adequate for the needs of the End User and/or Your purposes.

2. PURPOSE

2.1. You will be permitted to purchase Goods from Even Flow, for resale to End Users, in accordance with these General Terms and the terms of any other applicable agreement in place between You and Us (if any).

3. SCOPE

3.1. These General Terms will apply to all Orders placed by You with Us.

4. DEFINITIONS

In these General Terms defined words will begin with a capital letter and the below defined words will bear the following meanings:
4.1. “Agreement” means collectively these General Terms together with any other agreement between the Parties;
4.2. “Affiliate” means any legal entity which either Party Controls, or which Controls either Party, or which is under common Control with either Party;
4.3. “Anti-Bribery Requirements” means all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including, the Prevention and Combating of Corrupt Activities Act no 12 of 2004 (PRECCA) (as amended from time to time) and any applicable anti-bribery and corruption requirements of the Principal Supplier;
4.4. “Control” means owning more than 50% (fifty percent) of the issued share capital or having the legal power to direct or cause the direction of the general management and policies of the company in question;
4.5. “COO” means Cash on Order;
4.6. “Credit Period” means the period approved by Us in writing, within which You are required to settle an invoice issued for Goods supplied;
4.7. “Customer” means (i) The person or entity as described in paragraph 1 (Schedule “A”) of the Customer Account Application who has or will purchase Goods from Us; and (ii) You, an entity that purchases the Goods from Us. Such purchases are subject to these General Terms; and/or the Agreement;
4.8. “Delivery Destination” means the address identified on the Order or as agreed to in writing between the Parties. Notwithstanding anything to the contrary, immediately upon You or Your agent taking possession of the Goods risk will pass from Even Flow to You;
4.9. “Even Flow” means Even Flow Distribution (Pty) Ltd bearing the registration number 2013/043167/07. Even Flow is the distributor of the Goods and obtains the Goods from the Principal Supplier;
4.10. “End User” means the person or entity to whom You resell the Goods for their internal use;
4.11. “Goods” means any equipment / stock / good(s) / hardware / consumables / software / software licences / services purchased by You from Us;
4.12. “Parties” means Even Flow and You and “Party” will mean either Even Flow or You as the context will dictate;
4.13. “Personnel” means any director, employee, agent, consultant, contractor or other representative of Even Flow;
4.14. “Listed Price” means the price of the available Goods of Even Flow from time to time as reflected on Evenflow.online. If You purchase Goods offline in accordance with clause 10, then the listed price will be the amount stated on the Purchase Order, but subject to any adjustments as provided for in the Agreement;
4.15. “Principal Supplier(s)” means the supplier(s) or manufacturer(s) from whom Even Flow purchases Goods, in accordance with, and subject to, the Specific Terms;
4.16. “Order” means an offer issued by You. The Order outlines the details of each purchase, including the items, quantities, and prices. An Order may take two forms (i) An offline order or (ii) An online order which includes the combination of browsing on the Even Flow Online store, selecting Goods and proceeding to the checkout;
4.17. “Specific Terms” means any specific terms and conditions applicable to the Goods as prescribed by the Principal Supplier from time to time;
4.18. “Evenflow.online” means Even Flow’s e-commerce website that allows You to purchase Goods from Even Flow online; and
4.19. “Evenflow.online account” means Your account created on Evenflow.online that allows You to view the Listed Price and Order Goods, from Us, for resale to End Users.

5. INTERPRETATION

In these General Terms:
5.1. The rule of construction that an agreement will be construed or interpreted against the party responsible for preparing it will not apply.
5.2. If any provision in the definition section contains rights or imposes obligations on either Party, then even though such provision is in the definition section of these General Terms, effect will be given to the provision as if it were a substantive provision in the body of these General Terms.
5.3. The use of the words “including” or “excluding” followed by specific example(s) will not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule will not be applied in the interpretation of such general wording or such specific example(s).
5.4. Any reference to “day” or “daily” will be construed as a reference to a calendar day.
5.5. The expiration or termination of these General Terms will not affect those provisions of these General Terms that expressly provide that they will operate after any such expiration or termination or which, of necessity, must continue to have effect after such expiration or termination, notwithstanding that the provisions themselves do not expressly provide for this.

6. PRINCIPAL SUPPLIER(S) TERMS AND CONDITIONS

6.1. All Goods distributed to You, by Even Flow, are subject to the Specific Terms set by the Principal Supplier(s). You will be liable for any claims related to the Specific Terms. The Specific Terms may be amended from time to time without prior notification to You.

7. DOCUMENTATION

7.1. All specifications, descriptive matter, drawings and other documents furnished from Us to You, at any stage, do not form part of these General Terms and may not be relied upon unless agreed to in writing, by Us, to form part of these General Terms.
7.2. If any descriptive matter, specifications, drawings and particulars provided by Even Flow does form part of these General Terms, such descriptive matter, specifications, drawings and particulars given are approximate only and Even Flow cannot be held responsible for loss due to discrepancies therein.

8. LISTED PRICE

8.1. The Listed Price on Evenflow.online is not an offer but is an estimated price for Goods. The Listed Price is therefore subject to change, as a result of, including but not limited to, any additional charges imposed by the Principal Supplier(s), increase in the rate of exchange, tax variations, or third party costs in delivering the Goods to You.

9. PURCHASING GOODS ONLINE

9.1. Evenflow.online enables You to browse Goods on the website, add Goods to a virtual shopping cart, and complete the purchase of the Goods through the approved payment methods. Evenflow.online is offered by Us as an additional service to You and in no way do We accept any liability for failure to deliver this service to You, howsoever arising.

10. PURCHASING GOODS OFFLINE

10.1. As and when You require Goods from Us, You will submit a request for a quotation for the required Goods (“Quotation Request”).
10.2. The Quotation Request placed by You must:
10.2.1. Stipulate the Good(s), number, quantity and description of the Goods required;
10.2.2. Where delivery is required at a destination other than Your Delivery / Trading address, the delivery address needs to be specified; and
10.2.3. Stipulate the estimated time frames for delivery.
10.3. We will provide You with a quotation. Any quotation provided to You will be valid for the period stated therein (if no period is stated it will be deemed to be valid for a period of 24 hours), but will be revocable by Us any time prior to acceptance thereof by You.
10.4. You must provide Us with a purchase order for the Goods to accept Our quotation. The quotation and the purchase order will constitute a binding agreement. The terms and conditions contained in these General Terms, as well as any additional terms and conditions contained in the quotation, will apply to such an agreement.
10.5. All quotations and/or purchase orders are subject to the Specific Terms and these General Terms. The Customer acknowledges that it is aware of the Specific Terms and General Terms and Conditions.

11. PRICE AND PAYMENT

In respect of all orders, unless the contrary is stated, the following price and payment terms will apply:
11.1. Prices contained on the quotation are exclusive of value added tax (VAT).
11.2. In addition to any invoices, the Customer will be liable to pay the Supplier for the following:
11.2.1. The amount of any tax, duty or other charge that may be imposed by any lawful authority, which comes into force in respect of an order after a quotation and/or an invoice was issued;
11.2.2. The amount of any increases in: The prices charged by the Principal Supplier, rates of exchange, freight charges, insurance, railage, costs of labour, materials or any other charges after the date of quotation;
11.2.3. Any other additional costs incurred by the Supplier as a result of (i) Any delay caused by the Customer or due to factors beyond the control of the Supplier; and (ii) The Customer in modifying, altering or making additions to the design, quantities or specifications for the Goods, and any expenses arising as a result of suspension of work by the Supplier due to instructions given by the Customer, or a failure by the Customer to give an instruction;
11.2.4. Payment by the Customer to the Supplier will be made (i) Free of exchange and without any deduction or set off; (ii) Into the nominated bank account of the Supplier or into such other bank account as the Supplier may direct from time to time in writing; (iii) In cash or by electronic fund transfer, unless otherwise agreed to by the Supplier; and (iv) Prior to the expiry of the Customer’s approved payment terms, as per clause 9 of schedule “A”, and if no payment terms have been approved, on a COO basis.
11.3. Any changes to the Supplier’s bank account details are only valid if provided by a financial manager of the Supplier, on the Supplier’s letterhead, and sent from a Supplier email address. The Customer bears all risk should it act on changes to the Supplier’s bank account details that are not in accordance with the foregoing.

12. CONSENT

12.1. The Customer hereby authorizes the Supplier to do the necessary credit checks and to reveal any information contained herein to any Credit Bureau for the purpose of establishing the Customer’s Credit Record.
12.2. The Customer hereby consents to the Supplier processing (or permitting a third party to process) any data or personal information of the Customer, subject to any Applicable Laws, as provided for in Schedule “B” to this Agreement.
12.3. Each Party warrants that it will at all times comply with the provisions of the Protection of Personal Information Act 4 of 2013.

13. ORDERS

13.1. All orders are subject to acceptance by Even Flow before they are binding on Even Flow.

14. RESPONSIBILITY FOR THE ACCOUNT

14.1. You will be liable for each Order initiated on Your behalf by any of Your employees or agents. Regardless of whether such Order was approved internally by You, You warrant that the person placing the Order has the necessary internal consent to transact on Your behalf.

15. ORDER CONFIRMATION

15.1. Even Flow will notify You once Your order has been confirmed, which will constitute Even Flow’s acceptance of Your Order in accordance with these General Terms.
15.2. For both COO accounts and accounts with payment terms, each order confirmation will be a separate binding agreement between You and Even Flow.
15.3. Should You seek to cancel Your Order after Even Flow’s acceptance, this will be subject to Even Flow’s written consent (at its sole discretion), and You agree to indemnify and hold Even Flow harmless against any and all claims and costs incurred as a result of Your cancellation.

16. SUBSTITUTE GOODS

16.1. Should any Goods required in an Order become unavailable after the Order Confirmation, Even Flow reserves the right to supply You with an alternative or substitute Good, alternatively, Even Flow may withdraw the Order Confirmation in its sole discretion.

17. DELIVERY

17.1. General Delivery terms. We will use Our best efforts to deliver the Goods to You, as close as possible to the estimated time frames indicated on the Order confirmation. However, we will not be liable for any delays or cancellations. If we are unable to deliver the Goods within the estimated time frames, we will keep You informed of any delays in delivery. A delay in delivery does not entitle You to: (i) Resile from the Order; (ii) Withhold or defer any payment; (iii) A reduction in price; and/or (iv) Any other remedy against Even Flow.
17.2. Delivery by a Third Party. Should You instruct Us to engage a third party, on Your behalf, for the purpose of attending to the delivery of the Goods:
17.2.1. You indemnify Us against any claims that may arise against Us from such an instruction, irrespective of whether such instruction was from You or the End User;
17.2.2. You will reimburse Us for any costs incurred in arranging such delivery, including but not limited to, the costs of necessary disbursements and insurance;
17.2.3. The Goods will be deemed to have been delivered to You upon receipt of a notification confirming such delivery to You;
17.2.4. The actions of such third party will be deemed to be performed under Your instruction; and
17.2.5. Should You delegate any of Your obligations to a third party You agree that You will be liable for the actions of such third party.

18. IMPORTED GOODS

18.1. Where the Goods or any part thereof are to be imported, these General Terms are subject to the condition that (i) Even Flow’s order is accepted and confirmed by the Principal Supplier and that delivery is made thereunder in due course; (ii) Even Flow can obtain the necessary import permits to import the Goods; and (iii) The importation of the Goods does not contravene any local or international laws and regulations.

19. RISK OF DAMAGED, DESTROYED AND/OR MISSING GOODS

19.1. The risk of damage to, or destruction of, all Goods passes from Even Flow to You when You or Your agent take possession of the Goods at the Delivery Destination.
19.2. You will be obliged to inspect all Goods upon delivery thereof and will endorse the delivery note as to any missing or damaged Goods.
19.3. Any signature on the delivery note will be deemed to confirm complete delivery.
19.4. No claims for missing or damaged Goods will be valid unless same is stated in the delivery note.
19.5. You are obliged to furnish information necessary to enable delivery or to take delivery of the Goods and if You fail or refuse to do so the Goods will be deemed to have been delivered to You on notice to You.
19.6. If Even Flow is unable to deliver due to any act or omission on Your part or is requested not to deliver the Goods to You, Even Flow will be entitled to charge You for the storage of the Goods and any ancillary cost incurred by Even Flow, in this regard.

20. OWNERSHIP

20.1. Ownership of the Goods purchased will only pass from Even Flow to You upon full payment in accordance with the Order Confirmation. You are required to inform the landlord of the premises where the goods are located about this section 20.

21. WARRANTY RETURNS AND REPAIRS

21.1. To the extent that the Goods made available by Even Flow are in any way defective, You shall be entitled, within the warranty period, and subject to the terms of the warranty applicable to such Goods, to either a repair or replacement of such defective Goods or the granting of credit, at the sole discretion of Even Flow. In case of replacement, We undertake to replace such Goods with Goods of the same or similar specification. This section 21.1 shall at all times be subject to the following:
21.1.1. You notifying Us within 7 (seven) days of such defect arising, which notice must be in writing, and must clearly specify the alleged defect, and be supported by the original tax invoice;
21.1.2. The Goods must be returned by You to Even Flow, at Your expense, packaged in their original or suitable packing material, together with all manuals, accessories, and other parts provided with the Goods;
21.1.3. The Goods being returned must still be covered by a valid Principal Supplier warranty and/or guarantee at the time of return, as confirmed by Even Flow.
21.1.4. Even Flow shall be relieved of all obligations in terms of this section 21.1 should: (i) repairs be made to the Goods by any unauthorised third party; (ii) any modifications have been made to the Goods; (iii) the Goods have been used or operated with any accessory, equipment, or part not specifically supplied and/or approved by the Principal Supplier and/or Even Flow in writing; (iv) the Goods have not been operated or maintained in accordance with the Principal Supplier and/or Even Flow’s instructions; or have been subject to abnormal use; or have been incorrectly installed; (v) the Goods have been used contrary to the terms of the applicable Principal Supplier warranty and/or guarantee; (vi) Lightning, surge, and physical and/or liquid damage is not covered under the warranty unless otherwise agreed to, in writing, by the Principal Supplier and/or Even Flow.
21.2. Should You wish to hand in Goods to Even Flow for repair, and such Goods are not covered by a valid applicable Principal Supplier warranty and/or guarantee, then You agree to the following:
21.2.1. Even Flow may request a non-refundable deposit of R500 (five hundred rand) at the time the Goods are delivered to Even Flow (the costs of such delivery shall be borne by You), should You have a credit facility You expressly authorise Even Flow to deduct such deposit from Your account;
21.2.2. Even Flow shall provide You with a written repair quote within 7 (seven) days of the Goods being handed in for repair;
21.2.3. The repair quote must be accepted or rejected by You within 48 (forty eight) hours of receipt by You;
21.2.4. Should the repair quote be rejected by You, You accept that You shall forfeit Your deposit and will be required to collect the Goods, at Your expense, at Even Flow premises;
21.2.5. Should You accept the repair quote, You accept that Your deposit shall be set-off against the cost of repair and You shall be liable to pay the difference immediately upon receipt of the repaired Goods alternatively this amount will automatically be debited against Your account;
21.2.6. Upon acceptance of the repair quote as envisioned in section 21.2.5 above, Even Flow shall notify You in writing of the estimated repair time, which shall be an estimate only and shall not be binding on the Parties;
21.2.7. Once the necessary repairs have been effected, Even Flow shall notify You that the repaired Goods are available for collection, and You agree to collect such Goods (at Your expense) and pay the costs of repair as soon as possible after receipt of such notification, but in any event no more than 30 (thirty) days from date of notification;
21.2.8. Should You fail to collect the Goods within 30 (thirty) days from the date of notification as envisioned in section 21.2.7 above, You accept that Even Flow shall be entitled to sell the Goods in order to defray the costs of repair and You acknowledge and accept that Even Flow shall have no liability to You in this regard;
21.2.9. Repairs on out-of-warranty items will be carried out on a best-effort basis, however, Even Flow does not guarantee that the repaired Good will function as intended or as it did prior to the requested repair; and
21.2.10. For the return of repaired Goods, demo stock, proof of concept goods, Even Flow reserves the right, in its sole discretion, to levy a handling fee. Even Flow is not obliged to accept the return of any Goods and will render assistance in this regard as an additional separate and discretionary service for You.

22. EXCLUSION OF LIABILITY FOR REPAIRED GOODS

22.1. To the extent permitted by applicable law, Even Flow will not be held liable for any loss, damage, or subsequent malfunction of the repaired Good. This includes, but is not limited to:
22.1.1. Indirect, special, incidental, or consequential damages or losses (whether foreseeable or unforeseeable) of any kind including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the supply of the Goods;
22.1.2. Risk of Complete Failure. Repairs to out-of-warranty Goods may carry a risk of complete failure. By submitting your Good for repair, you acknowledge and accept this risk; and
22.1.3. Pre-Existing and unrepairable Damage. The repair outcome may be affected by pre-existing damage, wear and tear, or other issues that may render the Good unrepairable.
22.2. Replacement of Returned Goods. You may return any defective Goods to the Delivery Destination of Even Flow or its nominee at Your cost. If the Goods returned are still within the warranty period and have been proven to be defective by Our technician, then We, at Our election, either replace, repair, or refund the Goods. In case of replacement, We undertake to replace such Goods with Goods of the same or similar specification.
22.3. Return of Unwanted Goods
22.3.1. Even Flow reserves the right to charge a handling fee on the value of the Order cancelled or Goods returned if a Customer cancels an Order and Even Flow accepts the return of unwanted Goods.
22.3.2. Even Flow will only entertain such requests if made within 7 (seven) business days of the date of invoice. The Goods must be accompanied by the original tax invoice and original packaging with all accessories and manuals intact. All items must be returned in “as new” condition.
22.3.3. Even Flow reserves the right to offset the value of any Goods accepted for return against any amounts due by You and no cash refunds will be paid to You.
22.4. Return of Goods that did not Match the Order
22.4.1. If the Goods do not match what was ordered, You must notify Even Flow, in writing, as soon as possible after delivery and the Goods must be returned to Even Flow within 7 (seven) business days after delivery.
22.4.2. The Goods must be returned in their original condition and repackaged in their original packaging failing which Even Flow will be entitled to charge a reasonable amount for the use of the Goods during the time they were in Your possession, any consumption or depletion of the Goods, or for necessary restoration costs to render the Goods fit for restocking.

23. TERMS OF USE

23.1. All access to Your Evenflow.online account is granted to the authorised person, by Us, in accordance with these General Terms, on a non-transferable basis, for Your internal business purposes. You must ensure that the authorised person uses Your account in accordance with these General Terms.
23.2. You are solely responsible for provisioning the Goods for the End User and for any linking of the authorised person to purchase Goods on Your behalf.
23.3. All rights granted to You under these General Terms are limited to such rights that are provided by the Principal Supplier, subject to the following limitations:
23.3.1. It is Your sole responsibility to ensure that the authorised person understands and expressly agrees that access to Evenflow.online is granted subject to the authorised person complying with these General Terms;
23.3.2. It is Your sole responsibility to ensure that only authorised persons make use of the Evenflow.online;
23.3.3. It is Your sole responsibility to provide the authorised person with such security measures and authorisation as may be required to use and secure access to Evenflow.online. All charges incurred by any access or use will be for Your account, howsoever arising, including where such access or use is unauthorised;
23.3.4. You must ensure that the authorised person does not assign its right to access Evenflow.online to third parties without first obtaining Even Flow’s prior written consent;
23.3.5. You are responsible for the authorised person’s use of and access to Evenflow.online in accordance with these General Terms;
23.3.6. You are responsible for ensuring the confidentiality of any authentication credentials associated with the authorised person’s use of Evenflow.online. You must implement reasonable security measures (which must be no less than the minimum-security measures specified by Even Flow from time to time), to ensure that no unauthorised employees, personnel or third parties gain access to Your Evenflow.online account; and
23.3.7. You must promptly notify Us about any possible misuse of accounts or authentication credentials, or any security incident related to Your Evenflow.online account. Notwithstanding the aforesaid, You take full responsibility and liability for unauthorised access to and/or purchases of Goods by unauthorised employees, personnel or third parties, through Your Evenflow.online account by any other means, including fraud.

24. NON-SOLICITATION

24.1. You undertake that neither You nor any company, firm, employee or agent on Your behalf, without the written consent of Even Flow and for the duration of these General Terms and for a period of 24 (twenty four) months following termination of these General Terms, for whatever reason, shall engage, employ or otherwise solicit or attempt to engage, employ or otherwise solicit for employment, whether directly or indirectly under any circumstances, any person who, during the currency of these General Terms is or was part of the Personnel.
24.2. Should You breach the provisions of section 24.1, You will then have 7 (seven) days, after receiving written notice from Even Flow, in which to remedy the breach by cancelling and/or terminating any relationship You may have with the recruited Personnel.
24.3. You agree and understand that any breach of section 24 may result in irreparable damage to Even Flow for which Even Flow will not have an adequate remedy at law. Accordingly, and in addition to any other remedies and damages available, You acknowledge and agree that Even Flow may immediately seek enforcement of this section 24 by means of specific performance or interdict, and without any requirement to provide a bond or any other security, and You accept that You will be liable for all costs incurred by Even Flow in enforcing this section 24 on an attorney and own client scale, without derogating from, and in addition to, the above rights of Even Flow, Even Flow may elect, in its sole discretion, to consent to You employing such Personnel and in such instance You will be liable to pay a once off recruitment fee of 100% (one hundred percent) of the recruited Personnel’s annual package including any applicable incentives, bonuses and fringe benefits. You acknowledge and agree that any amount to be paid by You under this section 24 will be payable within 30 (thirty) days of commencement of such Personnel’s appointment by You.

25. ANTI-BRIBERY

25.1. You warrant that You have and will procure that persons associated with You including Your Affiliates will:
25.1.1. Comply with the Anti-Bribery Requirements;
25.1.2. Not engage in any activity, practice or conduct which would constitute an offence under PRECCA or any equivalent legislation, if such activity, practice or conduct had been carried out in the Republic of South Africa or any other country where the equivalent legislation applies;
25.1.3. Not do, or omit to do, any act that may lead Even Flow to be in breach of any of the Anti-Bribery Requirements;
25.1.4. Promptly report to Even Flow any request or demand for any undue financial or other advantage received by it in connection with these General Terms;
25.1.5. Will ensure that there exists no actual and/or potential conflict of interest, whether direct or indirect, between You and Even Flow;
25.1.6. Promptly notify Even Flow of any actual and/or potential conflict of interest, whether direct or indirect, between You and Even Flow. Should Even Flow, in its sole discretion, determine that such conflict of interest is material and/or prejudicial to Even Flow, Even Flow will be entitled to terminate any agreements between the Parties immediately and Even Flow will not be liable to You;
25.1.7. Have and maintain in place throughout the duration of any agreements between the Parties its own policies and procedures to ensure compliance with the Anti-Bribery Requirements and this section 25 (“Relevant Terms”) and will enforce them where appropriate;
25.1.8. Ensure that any person associated with You who is performing services in connection with these General Terms does so only based on a written contract which imposes on and secures from such person terms equivalent to those imposed on You in these General Terms. You will be responsible for the observance and performance by such persons of the Relevant Terms, and will be directly liable to Even Flow for any breach by such persons of any of the Relevant Terms; and
25.1.9. If requested, provide Even Flow with reasonable assistance to enable Even Flow to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with any of the Anti-Bribery Requirements.
25.2. You indemnify Even Flow, including Even Flow’s Affiliates, against any losses, liabilities, damages, costs, expenses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis)) and all other reasonable professional costs and expenses) suffered or incurred by, or awarded against Even Flow, arising out of or in connection with any breach or negligent performance by You of the Relevant Terms.
25.3. You will keep at Your normal place of business detailed, accurate and up-to-date records, books of account and such other necessary documentation to provide compliance with the Anti-Bribery Requirements and showing all payments made by You in connection with these General Terms and the steps taken by You to comply with the Anti-Bribery Requirements. You must ensure that such records and books of account are sufficient to enable Even Flow to verify Your compliance with Your obligations under the Relevant Terms.
25.4. You will permit Even Flow and Our third party representatives (who have signed a suitable non-disclosure agreement with Even Flow), on reasonable notice during normal business hours, but without notice in case of any reasonably suspected breach of this section 25 to access and take copies of Your records and any other information held at Your premises and to meet with Even Flow’s Personnel to audit Your compliance with Your obligations under this section 25. Such audit rights will continue for twenty-four (24) months after termination of all agreements between the Parties. You will give all necessary assistance to the conduct of such audits during the duration of such agreements and for a period of twenty-four (24) months after termination of such agreement.
25.5. You warrant and represent that neither You nor any of Your team members, officers, employees or other persons associated with You:
25.5.1. Has been convicted of any offence involving bribery, corruption, fraud or dishonesty;
25.5.2. Having made reasonable enquiries, so far as it is aware has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence under the Anti-Bribery Requirements;
25.5.3. Has been or is listed by any government agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programmes or other government contracts;
25.5.4. None of any other person who is performing services in connection with the Agreement is a foreign or local public official; and
25.5.5. No foreign or local public official owns a direct or indirect interest in Your company, or any person associated with it or any other person for whom You are responsible for and no public official has any legal or beneficial interest in any payments made by You under these General Terms.
25.6. Breach of this section 25 will be deemed a breach not capable of remedy and will entitle Even Flow to terminate the Agreement effective immediately.
25.7. If Even Flow terminates the Agreement for breach of this section 25, You will not be entitled to claim compensation or any further remuneration, regardless of any activities or agreements with additional third parties entered into before termination.
25.8. Regardless of any other provision in these General Terms, You will not be obliged to do, or omit to do, any act which would, in Your reasonable opinion, put You in breach of any of the Anti-Bribery Requirements.

26. CONSUMER PROTECTION ACT 68 OF 2008 (OR EQUIVALENT LEGISLATION IN TERRITORY WHERE CUSTOMER TRADES)

26.1. You acknowledge and accept that in the event that You, who acts as a supplier for the End User and as such becomes a supplier as defined in the Consumer Protection Act, Act No 68 of 2008 (“CPA”) (or equivalent legislation in the territory in which You trade), does not comply with the provisions of the CPA in any manner whatsoever and the consumer proceeds with a claim against You or Even Flow, You indemnify Even Flow against any claims made against Even Flow or You by the consumer.
26.2. You warrant in favour of Even Flow that Your annual turnover and/or asset value exceeds the threshold value as determined by the Minister in terms of the CPA, as updated and amended from time to time. As such, You acknowledge that the CPA does not apply to the engagement between the Parties.

27. CESSION, ASSIGNMENT, AND SUBCONTRACTING

27.1. You will not be entitled to cede or assign any rights and/or obligations which You may have in terms of the Agreement to any third party without the prior, written consent of Even Flow.
27.2. Even Flow will be entitled to cede and assign all rights and obligations under the Agreement to any of its Affiliates without the prior written consent of You, provided that Even Flow will notify You within a reasonable time of the event occurring.
27.3. Even Flow may sub-contract or delegate its obligations under the Agreement to its third-party contractors without notice to, or the consent of, You. Even Flow will remain liable for performance of such third-party contractors. Even Flow will not be required to disclose to You the terms (including payment terms) of any sub-contract entered into with respect to Even Flow’s obligations.

28. INDEMNITY AND WAIVER

28.1. You hereby indemnify and hold Even Flow (including its employees, subcontractors or subsidiaries) harmless in respect of: (i) Any claim or action that may be instituted by any third party against Even Flow in respect of the Goods; (ii) Any loss, damage or expense that may be incurred by Even Flow arising out of any defect (latent or otherwise) in any Good; and (iii) Any loss, damage or expense that may be incurred by Even Flow arising out of any act or omission that may be committed by You.
28.2. You hereby waive any claim which You may have against Even Flow arising out of any loss or damage which You may suffer or any expense that You may incur as a result of any act or omission committed by Even Flow, other than that caused by gross negligence on the part of Even Flow.

29. LIMITATION OF LIABILITY

29.1. To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, Even Flow’s maximum liability for direct damages for anything giving rise to any legal action will be an amount equal to the total paid or payable by You to Even Flow in respect of the applicable Goods to which the claim relates.
29.2. Exclusions. The limitations contained in section 29.1 will not apply to: (i) Any breach by a Party of the other Party’s proprietary or confidential information or intellectual property; (ii) A Party’s indemnification obligations under these General Terms; (iii) Any loss of or damage to any property or injury to or death of any person which arises from a Party’s negligence; or (iv) Damages arising from a Party’s wilful misconduct (including theft, fraud or other criminal act).

30. EXCLUSION OF LIABILITY

30.1. To the extent permitted by applicable law, in no event shall either party be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the supply of the Goods.

31. DISCLAIMER

31.1. You acknowledge and accept that Even Flow specifically disclaims the implied warranty of merchantability and fitness for a particular purpose. No representation or warranty, including but not limited to, statements of capacity, suitability for use or performance made by employees of Even Flow will be a warranty by Even Flow. Any such statements made will not give rise to any liability of whatsoever nature on the part of Even Flow, its employees, subcontractors or subsidiaries. Even Flow will not be liable to You for any loss, damage or expense of any nature, whether special, indirect or consequential, including but not limited to loss of profits arising out of Even Flow’s performance or Your use of the Goods.
31.2. Even Flow specifically disclaims that no warranties whether expressed or implied will apply, other than those provided in these General Terms.

32. DOMICILIUM

32.1. For the purpose of giving any notice the making of any communication, the payment of any monies and the serving of any processes You choose as Your domicilium citandi et executandi (“domicile”) at the addresses as set out in paragraph 1 of Schedule “A” to the Agreement and Even Flow chooses its domicile at: First Technology Building, 26 Augrabies Road (off Bekker Road), Waterfall Office Park, Midrand, 1686 South Africa. Marked for Attention: Arnold Sharp (ArnoldS@firsttech.co.za) and Richard Hammond (RichardH@firsttech.co.za and to legal.enquiries@firstdistribution.com).
32.2. Any notice given in terms of these General Terms will be in writing.
32.3. Any Party by notice to the other will be entitled from time to time to vary its domicile to any address within the Republic of South Africa provided that such other address may not be a post office box or poste restante. Such change of domicile will become effective on receipt thereof by the addressee.
32.4. Any notice and any communication or payment made by either party to the other (“the addressee”) which:
32.4.1. Is delivered by hand or courier at the addressee’s domicile will be presumed, until the contrary is proved, to have been received by the addressee at the time of delivery; and
32.4.2. If sent by electronic mail will be presumed unless the contrary is proved by the addressee to have been received on the date of transmission.

33. COMMUNICATION

33.1. All communication will be via email. It is Your responsibility to ensure that the correct contact information is supplied on the return documentation.

34. BREACH

34.1. If any Party (the “defaulting party”) commits a breach of any of the provisions of these General Terms, then any Party not in breach (“aggrieved party”) will be entitled to give the defaulting party written notice to remedy the breach.
34.2. If the defaulting party fails to comply with that notice within 15 (fifteen) days of receipt thereof, subject to any other provisions of these General Terms to the contrary, the aggrieved party will be entitled to cancel the Agreement or to claim specific performance, in either event without prejudice to the aggrieved party’s right to claim damages and without prejudice to such other rights as the aggrieved party may have at law.
34.3. Without limiting the generality of the foregoing, should You:
34.3.1. Fail to pay any amount payable by You on due date;
34.3.2. Commit any act of insolvency or endeavour to compromise generally with Your creditors;
34.3.3. Do or cause to be done anything which may prejudice Even Flow’s rights hereunder or at all;
34.3.4. Allow any judgement against You to remain unsatisfied for 7 (seven) days;
34.3.5. Be placed into provisional or final liquidation, judicial management, sequestration or voluntarily surrender Your estate;
34.3.6. Even Flow will have the right to, without prejudice to any other right which We may have against You, to elect to:
34.3.6.1. Treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period as agreed and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with You until You have remedied the breach; and
34.3.6.2. Cancel the Agreement and retake possession of any of the Goods.
34.4. Should Even Flow remove the Goods from Your premises or a third party to whom the Goods have been on-sold, You hereby indemnify Even Flow against all damage of whatsoever nature, howsoever and by whomsoever caused in relation to the removal of the Goods.
34.5. All payments due by You will not be dependent on You receiving payment from the End User. If You fail to make payment and state that Your payment is dependent on You receiving payment from the End User, this will be considered a material breach of these General Terms and Even Flow will be entitled to cancel the Agreement. You will be liable to pay Even Flow all monies that remain outstanding within 30 (thirty) days from the date of cancellation.

35. CERTIFICATE OF INDEBTEDNESS

35.1. You agree that the amount due and payable by You to Even Flow will be determined and proven by a certificate issued by Even Flow and signed on its behalf by any person duly authorised by Even Flow, which authority need not be proven. Such certificate will be prima facie proof of Your indebtedness.

36. INTEREST

36.1. You will pay interest on all amounts owing by You to Even Flow which have not been paid on the due date thereof. Interest will be calculated at the maximum permitted rate as published from time to time in the Prescribed Rate of Interest Act of 55 of 1975 (as amended) from the day payment became due up to and including the final date of payment, compounded monthly.

37. TERMINATION

37.1. Even Flow may terminate any ancillary agreements to these General Terms immediately at any time with prior notice to You.
37.2. Nothing contained in these General Terms will be construed to limit Even Flow’s claim in law.
37.3. All monies outstanding will become due and payable to Even Flow within 30 (thirty) days from the date of termination.

38. LAW AND JURISDICTION

38.1. The laws of the Republic of South Africa will apply to the interpretation of these General Terms and the parties accordingly agree that any dispute between the Parties will be resolved in the Republic of South Africa. The Parties hereby consent to the non-exclusive jurisdiction of the Magistrates Court otherwise having jurisdiction in respect of any proceedings in respect of or arising out of these General Terms or cancellation of any agreement between the Parties notwithstanding that the amount of the claim may exceed the normal jurisdiction of the Magistrate’s Court. This clause constitutes the required consent by the Parties to the jurisdiction of the Magistrates Court in accordance with section 45 of the Magistrates Court Act 32 of 1944.

39. COST

39.1. You will be liable for all costs incurred by Even Flow in the recovery of any amounts or the enforcement of any rights which We have hereunder, including collection charges and costs on an attorney and own client scale and costs of counsel, whether incurred prior to or during the institution of legal proceedings or if judgement has been granted, in connection with the satisfaction or enforcement of such judgement.

40. FORCE MAJEURE

40.1. If either Party is unable to perform its obligations (excluding a payment obligation) by reason of force majeure, neither Party will have any claim against the other as a consequence of such failure.
40.2. For the purpose of these General Terms “force majeure” will be deemed to be any cause affecting the performance of these General Terms arising from or attributable to acts, omissions or accidents beyond the reasonable control of the Party to perform and without limiting the generality thereof, will include the following: (i) An Act of God; (ii) Strikes, lock-outs or other industrial action where beyond the reasonable control of the relevant Party; (iii) Civil commotion, riot, invasion, war threat or preparation for war; (iv) Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural physical disaster; and (v) Political or governmental (central or local) interference with the normal operations of either Party.
40.3. Force majeure will not include:
40.3.1. Any event that is caused by the negligence or intentional action of the Party invoking the force majeure or such Party’s contractors, agents or employees; or
40.3.2. Any event that a diligent Party could reasonably have expected to take into account at the time of execution of the Agreement and avoid or overcome in the carrying out of its obligations under these General Terms.

41. GENERAL

41.1. The Agreement, read together with these General Terms, constitutes the whole Agreement between the parties and supersedes all prior verbal or written Agreements or understandings or representations by or between the parties regarding the subject matter of the Agreement.
41.2. No agreement to alter, vary or cancel these General Terms and no addition or amendment to or deletion from these General Terms will be of any force and effect unless reduced to writing and signed by all the Parties.
41.3. No indulgence, extension of time, relaxation or latitude which any party (the “grantor”) may show, grant or allow to the other (the “grantee”) will constitute a waiver by the grantor of any of the grantor’s rights and the grantor will not thereby be prejudiced or estopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future.
41.4. If any of the sections of these General Terms are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
41.5. Unless the context indicates otherwise the rights and obligations of any party arising from these General Terms will devolve upon and bind its successors-in-title.
41.6. Even Flow reserves the right to change or modify content, materials or information appearing on or in connection with these General Terms at any time with or without notice. Even Flow may at any time revise these General Terms. You are required to familiarise Yourself with any revised versions made available by Even Flow at https://evenflow.co.za/company-documents/terms-and-conditions/ as updated from time to time.