1. Inspection, Transit Delays and Non-delivery
1.1 The Customer must inspect the products as soon as is possible after delivery or collection. The Customer shall, within 10 of the date of delivery or collection or, in the case of sub-clause iv below, of the Quoted Delivery Time or any updated estimated date for delivery, give notice to SYBU DATA in detail of:
i) Any defect in the product that is apparent on reasonable examination. In this case SYBU DATA shall, at SYBU DATA’s discretion, replace the products or refund the purchase price. In any event, the Customer must refuse parcels delivered to it in a damaged condition;
ii) Any shortfall in products delivered. In this case, SYBU DATA shall, at its discretion, deliver the undelivered products or refund the price of the undelivered products;
iii) Any delivery of products not in accordance with the order. In this case, SYBU DATA shall, at SYBU DATA’s discretion, replace the products or refund the purchase price; or
iv) Any non-delivery of the products (in which case the time limit is within 10 days of the estimated dispatch date). In this case SYBU DATA shall deliver the undelivered products or refund the price of the undelivered products.
1.2 If the Customer fails to give any such notice, the products shall be conclusively presumed to be, in all respects, in accordance with the order and free from apparent defects, and the Customer shall be deemed to have accepted the products accordingly. SYBU DATA’s record of the products dispatched (including the quantity) shall be conclusive evidence of the products received by the Customer unless proved otherwise by the Customer.
1.3 The remedies set out above are the Customer’s exclusive remedies for non-delivery or short delivery of products, or for apparent defects in the products or delivery of products not in accordance with the order. SYBU DATA shall not be liable for any losses, consequential or otherwise, or for costs (including legal costs), expenses, liabilities, loss of profits, business or economic loss, depletion of goodwill, damages, claims, demands, proceedings, judgments or otherwise arising from these circumstances.
2.1 All payments must be made without any set-off, deduction or counterclaim.
2.2 If any sum is not paid on the due date for payment then, without prejudice to any other right or remedy:
i) all sums then outstanding from the Customer will immediately become due and payable notwithstanding that such sums would not otherwise be due until a later date, and
ii) SYBU DATA shall be entitled to recover all costs that it has incurred in recovering any outstanding sums from the Customer, including but not limited to collection costs and legal costs; and
iii) SYBU DATA may also charge the Customer interest from the due date until payment is made in full (both before and after any judgement) on the amount unpaid at a rate which is 2 percent per annum above the prime overdraft rate published by Standard Bank from time to time.
3. Passing of Risk and Property
3.1 In the case of products to be delivered to the Customer’s usual business address, risk of loss of or damage to the products shall pass to the Customer on delivery, unless the Customer fails to take delivery of the products, in which case such risk shall pass to the Customer at the time when SYBU DATA has attempted to deliver the products. In the case of products which the Customer orders to be collected from SYBU DATA’s offices, risk of damage or loss to the products shall pass to the Customer at the time of collection.
3.2 Ownership of any product supplied shall not pass to the Customer until full payment of the purchase price of the products and of all other amounts owing to SYBU DATA has been made and the funds has cleared. If the Customer is late in paying any sum to SYBU DATA, then SYBU DATA shall be entitled to the immediate return of all products where ownership has not passed to the Customer. The Customer authorises SYBU DATA and its agents to recover any such products in such circumstance, and to enter any premises of the Customer for that purpose.
3.3 Demand for or recovery of the products by SYBU DATA shall not of itself discharge either the Customer’s liability to pay the whole of the price and take delivery of the products or SYBU DATA’s right to sue for the whole of the price.
4. Product and Availability Information
4.1 SYBU DATA reserves the right, without prior notice, to discontinue any product or to make design changes as part of its continuous programme of product improvement, or to assist product availability, and such changes may take place during the life of any SYBU DATA product catalogue.
4.2 Unless otherwise confirmed in writing, nothing or in any SYBU DATA catalogue is to be taken as a representation of the source of origin, manufacture, or production of the products or any part of them.
5.1 In the event of any such product being materially defective, and subject to the provisions of Clause Inspection, Delivery, Delays and Non-Delivery surrounding defects apparent on delivery, SYBU DATA will (at its option) replace or repair the product or refund the purchase price.
5.2 These warranties shall not apply to any defect which arises from improper use, failure to follow the product instructions, or any repair or modification made without the consent of SYBU DATA.
5.3 The remedies set out in this clause shall be the Customer’s sole remedies for any breach of warranty and in respect of the supply or non-supply of products and/or services.
5.4 The availability of the remedies set out in this clause is subject to:
i) a claim being made in writing to SYBU DATA, prior to the return of any defective product, and within 12 months of the original date of dispatch or date of service, or such other periods as may be indicated by SYBU DATA for specific products or services from time to time in writing; and
ii) the Customer returning or disposing of the relevant products, in accordance with SYBU DATA’s instructions and suitably packaged. In particular, for any returns, the Customer must obtain a returns number from SYBU DATA and quote this on all paperwork, and state the original invoice number in respect of the products and the nature of any claimed defect.
5.5 Where the Customer returns defective products otherwise than in accordance with these provisions, SYBU DATA may refuse such products and return them to the Customer at the cost of the Customer.
5.6 Any products which are replaced by SYBU DATA shall become the property of SYBU DATA. Title to replacement products shall pass to the Customer in accordance with the provisions of clause Risk and Ownership, and the period of the replacement product’s warranty shall be the unexpired period of the defective product’s warranty.
5.7 The Customer shall have no remedy in respect of any untrue statement made to it upon which it relied in ordering products and/or services (unless such untrue statement was made fraudulently) other than any remedy it may have set out expressly in these terms and conditions of sale.
5.8 Save as expressly provided in these terms and conditions of sale, all implied warranties, terms and conditions (whether statutory or otherwise) concerning the supply or non-supply of products and/or services are excluded to the fullest extent permitted by law (including, without limitation, the implied terms of satisfactory quality, fitness for purpose and provision of services with reasonable care and skill).
5.9 Except as required by law, SYBU DATA will not be liable to the Customer for any loss, damage or liability of any kind whatsoever which arises out of the breach of implied warranties, terms or conditions (statutory or otherwise) or breach of any other duty of any kind imposed on SYBU DATA by operation of law. The Customer acknowledges that it is responsible for ensuring that the products and services it orders are fit for the purposes for which it intends to use them.
6. Export Control and Limitations of Use
6.1 The Customer shall not, directly or indirectly, sell, permit to be sold, dispose of, export, re-export or otherwise provide products to any country or entity under sanction or embargo administered by the United Kingdom, the United States of America, the European Union or other countries.
6.2 The Customer certifies that products purchased from SYBU DATA will not be used, sold or incorporated into products used directly or indirectly in the design, development, production or use of chemical, biological or nuclear weapons, delivery vehicles and systems of the same or in the development of any weapons of mass destruction.
6.3 Products sold by SYBU DATA are not authorised for use in life support, surgical implantation, nuclear or aircraft applications or for any use or application in which the failure of a single component could cause substantial harm to persons or property.
7.1 SYBU DATA shall not be under any liability for damage, losses (whether direct, indirect or consequential), expenses, liabilities, loss of profits, business or economic loss, depletion of goodwill, costs (including legal costs), claims, demands, proceedings, judgments or otherwise resulting from the failure to give advice or information or the giving of incorrect advice or information (including through SYBU DATA technical helpline) whether or not due to its negligence or that of its employees, agents or sub-contractors.
7.2 SYBU DATA shall not be liable for economic loss, punitive damages, loss of revenue, loss of profits or expected future business, damage to reputation or goodwill, loss of any order or contract or any consequential or indirect loss or damage, all as may result from, or be connected with: (i) any express or implied terms of the contract between SYBU DATA and the Customer, or of any order accepted by SYBU DATA; (ii) any duty of any kind imposed on SYBU DATA by law arising out of or in relation to the contract between SYBU DATA and the Customer or order; (iii) any defect in the products or services; (iv) intellectual property rights infringement; or (v) any other loss whatsoever arising out of these terms and conditions of sale.
7.3 If, notwithstanding any other provisions in these terms and conditions of sale including without limitation clauses 9 (Warranties and Remedies), 10 (Limitations of Use) and 11 (Liability), any liability attaches to SYBU DATA, SYBU DATA ‘s liability to the Customer arising out of or in connection with these terms and conditions of sale or any order whether in contract, delict or otherwise in respect of one or more of (i) any express or implied terms of the contract between SYBU DATA and the Customer, or of any order accepted by SYBU DATA; (ii) any duty of any kind imposed on SYBU DATA by law arising out of or in relation to the contract between SYBU DATA and the Customer or the order; (iii) any defect in the products or services; (iv) intellectual property rights infringement; or (v) any other loss whatsoever arising out of these terms and conditions of sale, shall be limited to the lesser of R100000 and the total value of the order.
7.4 Nothing in these terms and conditions of sale (including without limitation this clause 11) shall exclude or limit the liability of SYBU DATA for death or personal injury caused by the negligence of SYBU DATA or its employees, agents or sub-contractors, or for fraud or anything else which cannot by law be limited or excluded.
8. No Fault Cancellations and Returns
8.1 Customers may only return products to SYBU DATA and receive a credit or refund and under the following conditions:
i) The Customer should contact SYBU DATA to obtain a returns number
ii) Return must be made within 30 days of the date of delivery (as stated on the delivery documentation) or collection of such product(s).
iii) Products must be returned to SYBU DATA in their original condition and packaging and in a condition which will enable them to be immediately fit for resale;
iv) The Customer must quote the invoice details or the SYBU DATA reference number on the SYBU DATA Customer Returns Form from the original despatch note, otherwise, any credit given for the returned products will be based upon the lowest sales price.
8.2 Where the Customer returns products to SYBU DATA not in accordance with above conditions (for example, after the period for returns has expired or in an unfit state) SYBU DATA may refuse to accept the return and return the products to the Customer at the Customer’s expense or may apply a handling charge which relates to the actual cost of reprocessing (subject to the minimum charge set out by SYBU DATA).
8.3 This no fault returns policy excludes software, specially manufactured products and any products marked as non-cancellable (NC) or non-returnable (NR). In addition, SYBU DATA will not accept returned ESD sensitive devices where the integrity of the original SYBU DATA ESD shielding packaging has been compromised e.g. the bag has been opened and resealed or multiple bags have been stapled together.
8.4 SYBU DATA accepts no responsibility for any loss of or damage to products in transit from Customer to SYBU DATA.