TERMS & CONDITIONS

PART A: FOR COURSES OFFERED BY ENCONA

Definitions
1. In this Part A of these terms and conditions, unless the context requires otherwise:
  1. “Customer” means a company or individual that completes a Delegate Application Form or who has an approved Encona Account;
  2. “Course” means any training course offered by Encona;
  3. “Delegate” means the party or parties named as attendees on the Delegate Application Form;
  4. “Delegate Application Form” means Encona’s application form which must be completed by all Customers or potential Customers in order for their Delegates to be admitted to any of the Courses;
  5. “Encona” means ENCONAcademy Proprietary Limited or any companies operating under the ENCONA brand;
  6. “Official Confirmation” means a written confirmation which shall be issued by Encona to the Customer confirming that a Delegate’s place on one of its Courses has been booked;
  7. “Parties” means the Customer and Encona and “Party” shall be construed as either one of them as the context may indicate;
  8. “Training Services” means the training services rendered by Encona to the Customer in running, administering and overseeing the Courses which are offered by it and which have been booked by the Customer; and
  9. “Terms” mean the terms and conditions of trade provided for herein.
Interpretation
1. In this Part A of these Terms, unless the context requires otherwise:
  1. 2.1.1.headings are for convenience only and do not affect the interpretation of these Terms
  2. 2.1.2.words denoting any one gender include all other genders and words denoting the singular shall include the plural and vice versa;
  3. 2.1.3.a reference to:
    1. a "Business Day" means any day other than a Saturday, Sunday or statutory public holiday;
    2. a "clause" or "Schedule" is a reference to a clause of or Schedule to these Terms;
    3. a "person" includes an individual, firm, company, partnership, body corporate, organisation, trust, an unincorporated association and any governmental authority, in each case whether or not having separate legal personality;
    4. when any number of days is prescribed in these Terms, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day; and
    5. when any payment falls due or any other obligation falls to be performed on a day which is not a Business Day, then such payment shall be made or such obligation performed on the next succeeding Business Day.
    6. Any reference in these Terms to these Terms or any other agreement or document shall be construed as a reference to these Terms or, as the case may be, such other agreement or document as same may have been, or may from time to time be, amended, varied, novated, supplemented, restated or replaced (in whole or in part).
    7. Specifying anything in these Terms after the words ‘including’, ‘includes’ or ‘for example’ or similar expressions shall not limit what else is included unless there is express wording to the contrary.
    8. Any provision in a definition which is a substantive provision conferring rights or imposing obligations on any Party shall constitute a substantive provision of these Terms.
    9. The expiration or termination of these Terms shall not affect such of the provisions of these Terms as expressly provide that they shall operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
    10. A term defined in any clause of these Terms shall, unless it is clear from the clause in question that the term so defined is specifically limited to that clause, bear the same meaning as ascribed to it for all purposes in terms of these Terms, notwithstanding that that term has not been defined in this interpretation clause.
    11. These Terms shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, permitted assigns or liquidators of the Parties as fully and effectually as if they had signed these Terms in the first instance and reference to any Party shall be deemed to include such Party’s estate, heirs, executors, administrators, trustees, permitted assigns or liquidators, as the case may be.
    12. The rule of construction that, in the event of ambiguity, the contract shall be interpreted against the Party responsible for the drafting thereof, shall not apply in the interpretation of these Terms.
Acceptance of Order
1. In order to reserve a place for Delegates in respect of a Course, the Customer must complete a Delegate Application Form. Such reservations can be accepted by Encona at any time up to the date when the Course in question commences, subject to availability.
2. An Official Confirmation shall only be issued by Encona to the Customer where the Customer has completed a Delegate Application Form and, in respect of:
  1. Customers who do not have an approved Encona account, where the Customer has furnished Encona with a proof of payment in respect of the Delegates and Course in question; and
  2. Customers who do have an approved Encona account, where the Customer has furnished Encona with a duly completed Purchase Order in respect of the Delegates and Course in question.
3. Prior to such Official Confirmation having been issued, all reservations are only provisionally held. Once an Official Confirmation has been issued, any such provisional reservation shall be final and binding.
4. The Official Confirmation shall be issued to Customers by e-mail. Only provisional reservations can be made via the telephone or via Encona’s online services.
Substitutions, Rescheduling and Cancellations
1. Any cancellation, request for transfer or request for rescheduling must be furnished by the Customer to Encona in writing.
2. Delegate substitutions may be made prior to the start of a Course without penalty, provided that Encona is informed prior thereto in writing.
3. It is the Customer's responsibility, having referred to the relevant Encona Course information, to ensure that the Course for which a Delegate has been enrolled is suitable to that Delegate’s requirements.
4. Reservations rescheduled by the Customer within seven days of the commencement date of a Course shall incur a 30% transfer fee, plus any price difference between the Course in question and the new Course fee, however, the transfer must take place within 12 months of the commencement date of the original Course.
5. Reservations rescheduled by the Customer more than seven days before the commencement date of a Course shall incur a 15% transfer fee, however, the transfer must take place within 12 months of the commencement date of the original Course.
6. Transfer requests received once a course has commenced are not acceptable and shall be considered to be a cancellation and shall be subject to the terms and conditions regarding cancellations set out below.
7. Cancellations by customers made more than 30 days before the commencement date of a Course shall not incur cancellation charges.
8. In the event, however, that a Customer cancels a reservation for which one transfer has already taken place, this shall incur a minimum 50% cancellation fee (see below), plus any additional cost incurred to suppliers and service providers that cannot be recouped by Encona.
9. All other cancellations:
  1. within one to seven days of the commencement date of a Course shall incur a 100% cancellation fee, and
  2. between eight and thirty days shall incur a 50% cancellation fee.
10. Encona undertakes to provide the Courses on the date furnished to the Customer, therefore. If however, external circumstances beyond the control of Encona prevent this, Encona shall endeavour to re-run the Course in question on a mutually agreeable and convenient basis.
11. Encona reserves the right to cancel a course due to circumstances beyond its reasonable control, although it shall make every effort to ensure that this does not occur. In the event of a Course being cancelled by Encona, alternative dates for the Course shall be proposed or a full refund of monies paid shall be made to the Customer.
12. Encona takes no responsibility, and shall not be liable, for any loss of profit and/or for any incidental, consequential special or indirect losses suffered by the Customer or any Delegate as a result of any Course being cancelled or re-scheduled.
13. Encona reserves the right to assign or sub-contract its training courses to other appointed, duly qualified and approved personnel.
Pricing and Payment Terms
1. In the event that a Customer is furnished with a Quotation, unless stated otherwise on said Quotation; the Quotation will be valid for a period of 30 Days only. Once the Quotation has reached its expiration date it will be deemed to have lapsed and therefore will no longer be valid.
2. All Course fees are fixed and published by Encona, however, Encona reserves the right to review and change the prices of any Course until such time as an Official Confirmation has been issued to the Customer in respect of a particular Course.
3. The Course fee shall include tuition and other elements as appropriate to the Course in question. The composition of the Course fee will be specified in detail in the quotation.
4. No Delegate shall be permitted to attend a Course and no training services shall be provided until payment in respect of such Course has been received by Encona (unless the Customer has an approved account with Encona).
5. Unless expressly stated all prices quoted are exclusive of VAT and other taxes, which shall be charged at the prevailing rate as stipulated by the South African Revenue Service or equivalent appropriate regulatory body if outside South Africa from time to time.
6. All payments in respect of the Course fees shall be paid by electronic funds transfer, free of bank charges and without deduction or set-off, to Encona’s bank account, the details for which shall be set out in each relevant tax invoice, although payments in cash or by way of a bank guaranty may be accepted by Encona on prior arrangement with the Customer.
Course Content
1. Encona’s Course listing and content which can be found on its homepage (www.encona.co.za) is provided for information purposes only and does not constitute an offer for a particular course or programme. Encona constantly strives to improve the content of its courses and therefore reserves the right to modify the specification of a Course without notice to the Customer.
2. The title, duration, cost, content and location of any Course may be amended or changed by Encona at any time prior to the issue of an Official Confirmation.
Delegate Suitability
1. It is the Customer's responsibility to ensure that the Course is suitable for their requirements and the requirement of their Delegates. All Delegates should have read and understood the Course outline and have met the necessary prerequisites prior to the commencement of any Course.
2. Encona reserves the right to eject a Delegate from any Course if, at the reasonable discretion of Encona, the Delegate does not meet the Course prerequisites. Encona urges the Customer to support this policy, which is designed to protect the Customer's investment.
3. All Delegates shall be required to abide by any site rules and regulations operating at the course location.
Force Majeure
1. Encona shall be entitled to delay, cancel or amend the material of any Course (“Force Majeure Event”) if such Force Majeure Event has occurred due to circumstances beyond the reasonable control of Encona, which circumstances shall include: strikes, lockouts, third-party accidents, war, fire, acts of God, reduction in or unavailability of power, break down of plant or machinery or shortage or unavailability of raw materials from normal sources of supply.
Limitation of Liability and Indemnities
1. Encona shall not be liable for any loss or damages (including consequential or special damages or loss of profits), loss of life, bodily injury or damage to or loss of property, of whatsoever nature and howsoever caused, and whether or not caused by Encona, its directors, its officers, servants, agents or any other person acting on behalf of Encona, arising out of or connected in any way with:
  1. the rendering of the Training Services;
  2. the entry by the Customer or any Delegate into an agreement with Encona; or 9.1.3.the attendance by the Customer or any Delegate at any of the Courses,
2. except if such loss or damage arises directly from the gross negligence or wilful misconduct of Encona or any person acting for or controlled by Encona.
3. If, notwithstanding the aforegoing, any Delegate institutes a claim contemplated in clause 9.1 above against Encona, the Customer shall (and hereby irrevocably does) indemnify Encona from any liability which may arise in respect of such claim (including all legal and other costs associated therewith).
4. Notwithstanding anything to the contrary provided for herein, Encona’s maximum aggregate liability for any and all losses, claims, demands, damages, costs and/or expenses of any kind whatsoever arising out of or in connection with any Order Confirmation, the provision of the Training Services, the attendance by the Customer or any Delegate at any of the Courses and/or these Terms (whether in contract, tort, by statute or otherwise) shall not, in total, exceed the amount actually paid by the Customer to Encona in respect of its Training Services in relation to the Course in question.
5. The Customer shall be liable for any loss, damage or injury to Encona (or its representatives listed in clause 9.1) and/or such persons’ property which may arise whilst the Training Services and/or Courses are being rendered/convened at the Customer’s premises, where such loss, damage or injury is a result of the negligence of the Customer and/or is caused by a breach by the Customer of any statutory duty.
6. Encona shall not be liable for the failure of any third party hardware, software and/or systems that may be the subject of any Training Services or Courses.
Warranties
1. Encona warrants and represents that the Courses shall be administered in a professional and skilled manner, consistent with the professional standards and the general customs and practices of the industry.
Intellectual Property
1. No part of the training material in respect of any of the Courses may be reproduced, stored in a retrieval system, or transmitted in any form, or by any means (including electronic, mechanical, photocopying, or otherwise) without the prior permission in writing from Encona and/or the relevant copyright holder thereof.
2. The Customer undertakes that it shall not do anything, nor engage in any act, which may compromise or undermine the intellectual property rights of Encona in respect of the Courses and/or the training materials.
Marketing
1. Encona reserves the right to make use of Delegates photos for social media and advertising purposes.
Breach of Contract
1. Subject to any other provisions of these Terms providing for the remedy of any breach of any provision hereof, should any Party (“Defaulting Party”) commit a breach of any provision of these Terms and fail to remedy such breach within 14 Business Days after receiving written notice from the other Party (“Aggrieved Party”) requiring the Defaulting Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law, to cancel any reservations which have been made in respect of the Aggrieved Party (or its Delegates) or to claim specific performance of all of the Defaulting Party’s obligations whether or not due for performance, in either event without prejudice to the Aggrieved Party’s right to claim damages.
No Waiver of Rights
1. Any condonation of any breach of the provisions of these Terms or other act or relaxation, indulgence or grace on the part of Encona shall not in any way operate as, or be deemed to be, a waiver by Encona of any of its rights under these Terms or be construed as a novation thereof.
Jurisdiction
1. In terms of Section 45 of the Magistrate’s Court Act no. 32 of 1944 of South Africa, the Parties hereby consent to the jurisdiction of the Magistrate’s Court in the Republic of South Africa.
2. Notwithstanding the aforegoing, Encona shall in its sole discretion be entitled to institute an action in any court with competent jurisdiction.
Variations
1. No addition to, variation or consensual cancellation of these Terms shall be of any force or effect unless in writing and signed by or on behalf of each of the Customer and Encona.
Severability
1. All provisions in these Terms are, notwithstanding the manner in which they have been put together or linked grammatically, severable from each other. Any provision of these Terms which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatsoever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro-non-scripto and the remaining provisions of these Terms shall be of full force and effect.
Entire Agreement
1. These Terms together with the Delegate Application Form and Official Confirmation constitute the whole agreement between the Customer and Encona and any other terms, whether express or implied, are excluded herefrom. Any variations, cancellations or additions to these Terms shall be of no force or effect unless reduced to writing and signed by the Parties or their duly authorized signatories.
2. Further to clause 18.1 above, the Customer acknowledges that no member of Encona’s staff shall be authorised to amend these Terms and that any such amendment must be signed by one of Encona’s directors.
Application of Laws
1. These Terms shall be governed by the laws of the Republic of South Africa.
Conflicts
1. These Terms shall apply in respect of each Course for which the Customer applies on behalf of its Delegates and/or in respect of each Official Confirmation. Where the Customer has its own terms of service and a conflict arises between such terms and these Terms, the provisions of these Terms shall prevail.
Customer Warranty
1. The Customer warrants that the information submitted by it in the Delegate Application Form is true and correct in all respects and that it is entirely familiar with the terms and conditions contained herein.

PART B: FOR AUDITING WORK / CONSULTING SERVICES OFFERED BY ENCONA

Definitions
1. In this Part B of these terms and conditions, unless the context requires otherwise:
  1. “Auditing Services” means the auditing services offered by Encona including, inter alia, accredited IATF certification auditor resources for certification bodies, preparation for third- party IATF16949 audits and such other auditing services listed on Encona’s website from time to time;
  2. “Consulting Services” means the automotive consulting services offered by Encona, including, inter alia, project management services, project tracking and project timekeeping services, supplier development services, supplier quality assurance services and such other consulting services listed on Encona’s website from time to time;
  3. “Client” means a person to whom Encona renders its Consulting Services and/or its Auditing Services;
  4. “Services” means the Auditing Services and/or the Consulting Services (as the context may indicate);
  5. “Parties” means the Client and Encona and “Party” shall be construed as either one of them as the context may indicate;
  6. “Terms” mean the terms and conditions of trade provided for herein.
Interpretation
1. In this Part B of these Terms, unless the context requires otherwise:
  1. Words capitalised but not defined, shall be given the meaning ascribed to them under Part A; and
  2. Clause 2, clauses 13 to 15, clause 17 and clause 19 of Part A shall apply to this Part B mutatis mutandis.
Acceptance of Order
1. In respect of the provision of the Services, Encona shall furnish the Client with a quotation, setting out Encona’s daily rate for the Services and the number of days which shall be required in order for the service in question to be carried out.
2. The Client shall indicate its acceptance of a quotation from Encona, by issuing Encona with a purchase order that corresponds with the quotation in question.
3. Once Encona has received a purchase order from the Client in respect of a quotation, the terms of the quotation shall be final and binding on both Parties.
4. Notwithstanding clause 3.3 above, if the Client wishes to vary the number of days for which Encona shall render the Services as provided for in the purchase order/ quotation, it may request the same in writing from Encona and Encona shall consider each such request on an ad hoc basis. Should Encona elect, in its sole discretion, to accommodate such a request, it shall do so in writing within 5 Business Days of having received the same.
Daily Rate
1. Unless expressly stated all prices quoted are exclusive of VAT and other taxes, which shall be charged at the prevailing rate as stipulated by the South African Revenue Service or equivalent appropriate regulatory body if outside South Africa from time to time.
2. All quotations in respect of a daily rate are calculated with reference to an 8-hour working day.
3. Should the Client require that the Services be carried out for a period of longer than 8 hours on any given day, the daily rate will increase on a pro-rata basis for each additional hour for which the said Services are to be rendered (i.e. if the quoted daily rate was R8000.00, then for each hour that the Services are rendered in excess of an 8 hour working day, the rate for such additional time shall be R1000.00 per hour).
Pricing and Payment Terms
1. Encona shall invoice the Client for the provision of the Services monthly in arrears.
2. All invoices shall be paid by the Client to Encona within 5 Business Days of the issue thereof, unless otherwise expressly agreed in writing.
3. All payments by the Client to Encona shall be paid by electronic funds transfer, free of bank charges and without deduction or set-off, to Encona’s bank account, the details for which shall be set out in each relevant tax invoice.
Auditor/ Consultant Replacement
1. In the unlikely event that the Client is not satisfied with the consultant/ auditor to whom it has been assigned for the provision of the Services, the Client shall notify Encona in writing of its complaint by addressing the same to Hans Trunkenpolz at the following e-mail address: enquiries@encona.org Please include hans.trunkenpolz@encona.org in the CC section of the mail.
2. Encona shall investigate the merits of the Client’s grievance or complaint and, if necessary (as determined by Encona acting reasonably), shall undertake its best endeavours to replace the auditor/ consultant in question at the earliest reasonable opportunity.
Force Majeure
1. Encona shall be entitled to delay or cancel the provision of Services and/or amend a quotation (“Force Majeure Event”) if such Force Majeure Event has occurred due to circumstances beyond the reasonable control of Encona, which circumstances shall include: strikes, lockouts, third-party accidents, war, fire, acts of God, reduction in or unavailability of power, break down of plant or machinery or shortage or unavailability of raw materials from normal sources of supply.
Limitation of Liability and Indemnities
1. Encona shall not be liable for any loss or damages (including consequential or special damages or loss of profits), loss of life, bodily injury or damage to or loss of property, of whatsoever nature and howsoever caused, and whether or not caused Encona, its directors, its officers, servants, agents or any other person acting on behalf of Encona, arising out of or connected in any way with:
  1. the rendering of the Services; or
  2. the entry by the Client into an agreement with Encona,
2. except if such loss or damage arises directly from the gross negligence or wilful misconduct of Encona or any person acting for or controlled by Encona.
3. Notwithstanding anything to the contrary provided for herein, Encona’s maximum aggregate liability for any and all losses, claims, demands, damages, costs and/or expenses of any kind whatsoever arising out of or in connection with any agreement with the Client, quotation, purchase order and/or these Terms (whether in contract, tort, by statute or otherwise) shall not, in total, exceed the amount actually paid by the Client to Encona in respect of its Services for the month in which the cause of action for the claim in question arose.
4. The Client shall be liable for any loss, damage or injury to Encona (or its representatives listed in clause 8.1) and/or such persons’ property which may arise whilst the Services are being rendered at the Client’s premises, where such loss, damage or injury is a result of the negligence of the Client and/or is caused by a breach by the Client of any statutory duty.
5. Encona shall not be liable for the failure of any third party hardware, software and/or systems that may be the subject of any Services.
Variations
1. No addition to, variation or consensual cancellation of these Terms shall be of any force or effect unless in writing and signed by or on behalf of each of the Client and Encona.
Entire Agreement
1. These Terms together with any quotation and purchase order constitute the whole agreement between the Client and Encona and any other terms, whether express or implied, are excluded herefrom. Any variations, cancellations or additions to these Terms shall be of no force or effect unless reduced to writing and signed by the Parties or their duly authorized signatories.
2. Further to clause 10.1 above, the Client acknowledges that no member of Encona’s staff shall be authorised to amend these Terms and that any such amendment must be signed by one of Encona’s directors.
Conflicts
1. These Terms shall apply in respect of any Services rendered by Encona to the Client. Where the Client has its own terms of service and a conflict arises between such terms and these Terms, the provisions of these Terms shall prevail.

In cases of translated versions of this policy, the ENGLISH version shall prevail.

LAST UPDATED: 11 December 2020