Sales Terms
TERMS AND CONDITIONS OF SALE (“SALES TERMS”)
1. Introduction
1.1. This document defines the terms and conditions of doing business with Espresso Africa (Pty) Ltd (“the Company”).
1.2. These Sales Terms will apply to the exclusion of all other terms and conditions, whether express, tacit or implied, unless the Company specifically agrees in writing to accept any variation.
1.3. The Customer, by engaging the Company with the purpose to undertake business with the Company, including by requesting a quotation or placing an order or accepting delivery of any Goods or the rendition of any Services pursuant, accepts these Sales Terms as is.
1.4. In the event of there being a conflict between the provisions of any written quotation and these Sales Terms, the Sales Terms will prevail over the written quotation.
1.5. The Sales Terms can be found on https://za.lamarzoccohome.com/en/SalesTerms and are available in hard copy on request.
1.6. By agreeing to these terms, you confirm that:
1.6.1. you have taken the time to read these Sales Terms and you understand all your rights, risks and obligations; and
1.6.2. you have carefully read and paid proper attention to all the clauses in the Sales Terms.
2. Interpretation
2.1. The following rules apply to the interpretation of the agreement:
2.1.1. Clause and subclause headings are for reference only and do not affect the interpretation;
2.1.2. Whenever a clause lists specific examples or items following a listing word, such as ‘including’, ‘includes’, ‘excluding’ or ‘excludes’, they will not limit its scope.
2.1.3. All words or phrases that the agreement does not define have their English meaning;
2.1.4. References to any enactment including as a re-enactment, amendment or extension;
2.1.5. References to a person includes natural and juristic person;
2.1.6. References to a party includes their successors or permitted assigns;
2.1.7. When any number of days is prescribed, the first day will be excluded and the last day included;
2.1.8. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply; and
2.1.9. The parties will use GMT+2 to calculate any times
3. DEFINITIONS
3.1. “Business Day” means any day other than a Saturday, Sunday or holiday (including a public or bank holiday) in the Republic of South Africa.
3.2. “Confidential information” means: information, documentation, or other materials provided by disclosing party before or after the date of this agreement that is identified as being confidential or proprietary, or which disclosing party considers as having the necessary quality of confidence about it, and includes:
3.2.1. The discloser’s past, present and future research and development;
3.2.2. The discloser’s business activities, products, services, customers, as well as discloser’s technical knowledge and trade secrets;
3.2.3. The discloser’s software and associated material and documentation, including the contained information;
3.2.4. Any confidential information disclosed by a third party on behalf of the discloser; and
3.2.5. The terms of this agreement.
3.3. “Company” means Espresso Africa (Pty) Ltd (Registration No. 2021/437853/07) and all the employees, directors, and agents of Espresso Africa (Pty) Ltd.
3.4. “CPA” means the Consumer Protection Act 68 of 2008 and any regulation thereto and as amended from time to time.
3.5. “Customer” means the person whose details are completed in the Customer Application, or in the absence of a Customer Application any person, including a Consumer, a Sole Proprietor, a Partnership, a Company a Close Corporation, and the person with authority acting on behalf of any such entity with whom the Company undertakes any business or provides any advice, information or service, whether gratuitously or for reward.
3.6. “Customer Agreement” means the agreement between the Customer and the Company as described in clause 4 below.
3.7. “Customer Application” means the application in writing, on the predefined form, by the Customer to do business with the Company.
3.8. “Force Majeure Event” means any strike, lockout, irregular industrial action short of strike, cessation of labour, accident, embargo, riots, fires, tempest, hurricane, flood, drought, storms, explosions, acts of God, disease outbreaks, epidemics or pandemics, war (whether declared or not), insurrection, civil commotion, unrest, disturbance, breakdown in law and order, supervening legislation, governmental or other regulations, restrictions or directives or any other cause beyond the reasonable control of a Party.
3.9. “Goods” means any tangible object supplied by the Company to the Customer.
3.10. “Intellectual Property Rights” means any and all rights in the nature of intellectual property rights anywhere in the world, whether registered or unregistered, owned, possessed, exclusively represented by or controlled by a Party, directly or indirectly, including, without limitation, patents, trademarks, service marks, design rights, copyright (including all copyright in any designs and computer software), source codes, moral rights, databases, trade or business names, whether capable of registration or not, but including any right to register same.
3.11. “Losses” means all direct losses, liabilities, costs, expenses, fines, penalties, damages, claims and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties).
3.12. “Minimum Advertised Price” or “MAP” means the lowest price at which the Customer may advertise Goods or Services as defined in clause 10.
3.13. “Order” means an oral or written request by the Customer to the Company for the Company to supply Goods or render Services to the Customer;
3.14. “Party/Parties” mean either or both the Company or the Customer.
3.15. “POPIA” means the Protection of Personal Information Act 4 of 2013;
3.16. “Price” means the Price agreed between the Company and the Customer for the Goods or the Services, and such price will exclude VAT unless otherwise indicated by the Company;
3.17. “Pricelist” means the list of indicative prices and MAP for Goods and Services sold by the Company as published by the Company from time to time;
3.18. “Privacy Policy” means the Privacy Policy as published on the Company’s website;
3.19. “Quotation” means the Company’s written response to the Customer’s request for pricing of Goods or Services;
3.20. “Services” mean Services provided by the Company to the Customer;
3.21. “Special Order Goods” means Goods that a supplier expressly or implicitly was required or expected to procure, create or alter specifically to satisfy the customer’s requirements;
3.22. “VAT” means valued-added tax levied in terms of the Value-Added Tax Act, 89 of 1991, as amended.
4. CUSTOMER AGREEMENT
4.1. A Customer Agreement comes into being where the Customer has submitted a Customer Application to the Company and the Company has accepted the Customer Application.
4.2. On submission by the Customer to the Company of a complete Customer Application, the Company will review the Customer Application. Should the Company wish to do business with the Customer, the Company will communicate its acceptance of the Customer Application to the Customer.
4.3. On acceptance by the Company, the Customer Application together with these Sales Terms will become a binding agreement between the Company and the Customer.
4.4. Any variations of these Sales Terms will automatically become part of the Customer Agreement, effective from the date on which the amended Sales Terms are published on the Company website.
4.5. The Customer Agreement will commence on the date on which the written acceptance of the Customer Application is issued by the Company, and will continue until the Customer Agreement is cancelled by either Party providing written notice of cancellation to the other Party.
4.6. Termination of the Customer Agreement will not affect any obligations of the Customer to the Company in terms of the Customer Agreement, which obligations arose prior to the date of termination. Specifically, on termination the Customer remains liable for any amounts owed to the Company, all such amounts becoming due immediately on termination.
4.7. The fact that the Customer has done business with the Company in the past does not result in a Customer Agreement. Only a valid Customer Application submitted by the Customer and accepted by the Company will result in a Customer Agreement.
5. RESPONSIBILITIES OF THE CUSTOMER
5.1. The Customer agrees that it will notify the Company if it receives any notification that the Company has changed its banking details if the notification has not been received from the Company.
5.2. The Customer further agrees that any payments made by the Customer to any other bank account will not constitute a valid discharge of their obligations.
5.3. The Customer is responsible for all losses they suffer as a result of the Customer or its employees not complying with their obligations in terms of this agreement, including any amounts paid into a bank account that is not owned by the Company.
5.4. The Customer is responsible for advising the Company of any changes to its details, including contact details and address details of the Customer within 5 Business Days of it changing.
6. AUTHORITY AND INDEMNITY
6.1. The Customer warrants that its employees, agents or servants are authorised to conclude the Customer Agreement and place orders in terms of the Customer Agreement.
6.2. The Customer will be bound by the terms of the Customer Agreement if at any time a director, member or partner of the Customer has purported or purports to perform any act on behalf of the Customer without being authorized to do so.
7. PLACING OF ORDERS
7.1. Orders placed by the Customer can either be made orally or in writing.
7.2. Upon receiving an Order, the Company will generate a sales order or a pro forma invoice detailing the Goods or Services and the Price relating to the Order. It is the Customer’s responsibility to ensure that the Order is placed correctly, and that the Goods, Services and all of the Customer details are reflected correctly on the sales order or pro forma invoice.
7.3. The production of a delivery note, or invoice setting out the Goods or Services concerned and the Price is deemed to be acceptance of the order by the Company.
7.4. It will be the obligation and responsibility of the Customer to ensure that it’s Order clearly and accurately specifies, in all aspects, the requirements of the Customer.
7.5. The Company reserves the right to charge a reasonable cancellation fee for orders cancelled by the Customer.
8. SPECIAL ORDER GOODS
8.1. Orders placed for Special Order Goods by the Customer must be made in writing.
8.2. The Customer will pay the Company a deposit as defined in the Sales Order (“the Deposit”) for the Special Order Goods ordered.
8.3. In the event of the cancellation by the Customer of the purchase of the Special Order Goods from the Company, and not withstanding any other legal remedies that may be available to the Company, the Company reserves the right to retain the Deposit, in part or full payment, towards losses that the Company may suffer as a result of the Customer’s cancellation of the order.
8.4. The Customer acknowledges that Special Order Goods are acquired specifically to satisfy the customer’s requirements. Accordingly, the Company will incur losses in attempting to resell, or may be unable to resell, the Special Order Goods to another customer.
8.5. In the circumstances, the Customer acknowledges that both the amount of the Deposit and any retention of the Deposit by the Company is fair, reasonable and just.
8.6. The Company is not obliged to accept the return of Special Order Goods. If the Company believes that the Special Order Goods can be resold, the Company will accept the return at a price and on terms determined on a case by case basis as agreed between the Company and the Customer.
9. PRICE
9.1. Unless otherwise agreed in writing, the Goods or Services will be supplied at the ruling price on the date of dispatch of the Goods from or the rendering of Services by the Company.
9.2. Prices are subject to adjustment for any increases in the cost of Goods or Services that may arise between the date of acceptance of the Quotation and the delivery of the Goods or Services, arising directly or indirectly from any cause whatsoever, whether statutory or otherwise.
9.3. Unless otherwise expressly stated, the Price is exclusive of VAT, which will be for the account of the Customer, unless the Customer has given acceptable proof to the Company that the supply is a zero rated or an exempt supply. The Customer must pay or reimburse to the Company the amount of any VAT simultaneously with the Price.
9.4. An export transaction is defined as a transaction where the Company supplies the Goods or Services directly to an export location, which transaction will attract VAT at a zero rate. Any Goods or Services delivered to a location in South Africa, regardless of the final destination of the Goods, will attract VAT at the full rate.
9.5. The Customer is obliged to pay to the Company in addition to the Price:
9.5.1. the amount of any tax, duty or other charge of any nature whatsoever imposed by any law, regulation or enactment of whatsoever nature which comes into force on a date after the date on which any Price charged is determined;
9.5.2. any additional costs of any nature arising due to factors beyond the control of the Company;
9.5.3. any additional costs relating to the delay by the Customer.
9.6. Any expense incurred by the Company at the instance of the Customer in modifying or otherwise altering or making additions to the design, quantities or specifications for standard Goods or Services, and any expenses arising as a result of suspension of work by the Company due to instructions given, or a failure to give instruction by the Customer, will be added to the Price in respect of the relevant Goods or Services.
9.7. The Pricelist will be published by the Company from time to time and represents an indicative price for the Goods or Services. The prices on the Pricelist are not a binding price and do not represent an offer by the Company, but are merely an indication of the price that the Customer would pay should they decide to do business with the Company.
10. MINIMUM ADVERTISED PRICE
10.1. In order to protect and maintain the strong brand recognition and perceived value of the Company’s Goods and Services, the Company has adopted a policy of a Minimum Advertised Price on certain Goods.
10.2. The MAP represents the lowest price the Customer may advertise the Goods or Services in any public forum, physical signage, in any media, and on-line.
10.3. Where applicable, the Company will publish the MAP as part of the Pricelist from time to time.
10.4. Although the Customer shall have sole discretion as to the selling price of the Goods and Services, the Customer agrees to adhere to the Minimum Advertised Price policy.
10.5. In cases of violation of the MAP policy, the Customer will be notified by the Company and will be allowed 48 hours to bring the advertised price in line with the MAP policy. In cases of intentional or repeat failure to abide by this policy, the Company shall be entitled to cancel all orders with the Customer and cease the relationship with the Customer.
11. QUOTATIONS
11.1. A Quotation given by the Company will constitute an invitation to the Customer to do business with the Company.
11.2. The Company may revoke the Quotation at any time before acceptance.
11.3. A Quotation is open for acceptance for a period of 7 Business days of date failing which it automatically lapses.
11.4. The Customer may accept a quotation:
11.4.1. either orally or in writing; or
11.4.2. by making payment of the Price on the quotation, either partly or in full.
11.5. A Quotation is submitted by the Company as one indivisible transaction and must be accepted in its entirety. The Company may in its sole discretion accept an Order from the Customer in relation to a partial Quotation.
11.6. The Price is based on the rates of exchange, freight charges, insurance, rail costs, cost of labour and material and other charges ruling at the date of the Quotation. In the event of any increases occurring subsequent to the date of acceptance of the Quotation in any of the aforesaid rates or charges, as the case may be, the Company will be entitled, prior to delivery, to furnish the Customer with an amended Quotation reflecting such increases, which Quotation is required to be accepted in the same fashion as set out above.
11.7. The Price quoted by the Company is based on the site location as provided by the Customer. The Company reserves the right to increase the Price quoted should the site location differ from the initial site location provided by the Customer.
12. DELIVERY, OWNERSHIP AND RISK
12.1. Once the Company receives an offer from the Customer to deliver the Goods, the Company will endeavour to dispatch the Goods as soon as reasonably practicable (which may be longer than 30 calendar days) to the address the Customer specifies. The Company will try to adhere to estimated delivery dates but accepts no liability for failing to do so. The Customer may not withdraw any offer due to a delay in delivery.
12.2. All risk of loss or damage to the Goods will pass to the Customer upon delivery of the Goods. Delivery is defined as follows:
12.2.1. Where the Company delivers the Goods to the Customer, whether directly or through a third-party delivery service appointed by the Company, delivery occurs when the Goods are physically delivered to the delivery address;
12.2.2. Where the Customer appoints a third party to act as a delivery service on their behalf, delivery occurs once the Goods are received by the third-party delivery service; or
12.2.3. Where the Customer collects the Goods themselves, delivery occurs when the Goods are received by the Customer.
12.3. Ownership in the Goods will only pass to the Customer upon full payment of the Price.
12.4. The Company may withhold the delivery of the Goods if the Customer does not comply with any of it’s obligations under the contract. The Customer indemnifies the Company against any and all damages that the Customer may suffer for Customer’s inability to comply with its obligations under these Sales Terms.
12.5. Should the Customer request a change in its requested delivery date at a time when the Company has already incurred costs in attempting to comply with the date originally requested, the Customer will be responsible for all additional costs and expenses incurred by the Company in altering the delivery date.
12.6. Where the Company is prevented from effecting delivery of the Goods or providing the Services to the Customer due to any act or omission on the part of the Customer, the Company will be entitled to charge the Customer a reasonable fee for the storage of the Goods until it is no longer prevented from effecting delivery of the Goods or provision of the Services. In addition, the Customer will be responsible for all additional costs and expenses incurred by the Company in attempting to deliver the Goods or providing the Services (including travel, labour and accommodation) as well as all additional costs and expenses incurred by the Company in the subsequent delivery of the Goods or provision of Services.
12.7. The Customer must ensure that routes to and from the points of delivery of Goods or provision of Services on site are safe and suitable for the delivery vehicles, and that full and free access is available for the delivery vehicles of the Company or its transport service providers. The Company reserves the right to refuse to enter the Customer’s site to make delivery or provide Services if in the Company’s opinion the Customer’s site is unsafe.
12.8. The Customer must ensure that the delivery vehicles of the Company or its transport service providers are instructed to offload the Goods at the Customer’s desired point on the site. In the event of the Goods being offloaded at an incorrect point due to a failure by the Customer to so instruct, the Company will not be liable for any loss arising therefrom, whether direct, consequential, special or general.
12.9. The Customer must notify the Company if there is any damage to the Goods or if any of the Goods are missing within 48 hours of delivery of the Goods. By signing the relevant delivery note, invoice, courier’s waybill or other documentation provided by the Company, the Customer acknowledges that the Goods were received in good order, condition and repair and conform in all respects with the quantity, nature and quality of the Goods purchased by the Customer.
12.10. Any notification by the Customer in terms of Clause 12.9 must indicate clearly and comprehensively the Customer’s complaint, but will not in itself be of any probative value if there should be a dispute between the Parties in regard thereto and in such event the Customer will bear the onus of proving each and every element of its complaint.
12.11. The Company reserves the right to inform the owner/landlord of premises in which the Goods are or at any time may be, of its reservation of ownership in the Goods in terms of clause 12.3. The Customer must to this end advise the Company of the name and address of the owner/landlord of any such premises and must promptly advise the Company of any change in the name and the address of any owner/landlord or of any new owner/landlord.
12.12. Notwithstanding clause 12.11 above, the Customer must take all such steps as are necessary to notify interested third parties that ownership of the Goods in question has not passed to the Customer. In particular, the Customer must inform the owner/landlord of the premises in which the Goods already are, or any time may be, of the provisions of this clause. The Customer must produce written proof of such notices to the Company on demand.
13. HANDLING FEE ON RETURN OF GOODS
13.1. The Company is not obliged to accept the return of any Goods and this clause 13 will not be used to imply that the Company is obliged to accept the return of any Goods.
13.2. Should the Company agree to accept the return of any Goods, the Company reserves the right to levy a handling fee of up to 15% of the Price of the relevant Goods on such Goods being returned to and accepted by the Company.
13.3. The Company will only accept Goods for return if the Goods have not been used, are undamaged, are suitable for resale, are in the original packaging and has all the manufacturer’s user manuals and warranty.
13.4. The Customer is responsible for Transport costs for any Goods that it returns.
13.5. The Company’s Returns Policy contains detailed information pertaining to the return of Goods to the Company and can be found on the Company website and is available in hard copy on request.
14. GUARANTEE
14.1. New Goods carry the manufacturers 12-month warranty from the earlier of the date of sale or the date of delivery. The Customer will familiarize itself with the warranty and all other documentation that the manufacturer includes in the original packaging.
14.2. All guarantees/ warranties, however, implied, expressly exclude normal fair wear and tear, labour, and travel cost and also specifically exclude lightning damage; power surges; water damage; malicious damage, and acts of God.
14.3. The Company provides, over and above the manufacturer’s warranty, its own equipment warranty which is available on the Company’s website and available in hard copy on request. The Customer will be bound by the terms and exclusion listed in the Company’s equipment warranty.
15. DISCLAIMER OF WARRANTIES
15.1. The Company provides the Goods or Services “as is” and on an “as available” basis and the Customer uses it at their own risk.
15.2. To the extent allowed by applicable law, the Company does not give any express or implied warranty or make any other promise about the Goods or Services. The Company does not warrant the Goods are good quality, fit for any particular purpose, accurate, complete, up to date, legally effective or secure. The Company also does not warrant that they are free of latent defects or that the Customer will have quiet or uninterrupted use of it.
15.3. Despite the Company’s warranties, the Company is not liable for any defects that the Customer’s negligence, failure to follow instructions or misuse causes.
16. PAYMENT TERMS AND CREDIT
16.1. On the sale of Goods or provision of Services, the Company will generate a tax invoice indicating the Price and the amount of VAT due. The Customer will settle the full amount due as per the tax invoice, without deduction or set-off of any claims of the Customer against the Company, on the due date.
16.2. In the case of a sale of Goods or Services to a Customer that has not been granted credit facilities, the following will apply:
16.2.1. The due date will be in advance of the dispatch, delivery or collection of the Goods or provision of the Services. The Price plus VAT and any other amounts due must be paid in full by the Customer prior to dispatch, delivery or collection of the Goods and/or provision of the Services;
16.2.2. Any amount unpaid at the time of dispatch, delivery or collection of the Goods and/or provision of the Services will be regarded as overdue and must be settled immediately.
16.3. In the case of a sale of Goods or Services to a Customer that has been granted credit facilities, the following will apply:
16.3.1. The Price plus VAT and any other amounts must be paid in full by the Customer on or before the due date in accordance with the approved credit terms;
16.3.2. Any amount unpaid after the due date has passed will be regarded as overdue and must be settled immediately.
16.4. Any amounts due must be settled by the Customer, in the currency as invoiced, by way of electronic funds transfer or cash deposit into the bank account of the Company. Amounts due shall only be deemed paid once they reflect and are available in the Company’s bank account. Facilities are available at all of the Company sites to settle amounts due by the Customer by means of credit card or cash payment.
16.5. The Customer will be liable for all bank charges incurred by the Company as a result of the payment method elected by the Customer, including cash deposit fees.
16.6. A Customer that has amounts that are overdue will be regarded as in default and the following will apply:
16.6.1. The Customer will be considered to be in breach and the terms of clause 20 below will apply; and
16.6.2. The Customer account will be placed on credit hold and no further transactions will be processed against the Customer account; and
16.6.3. All other amounts owing by the Customer to the Company, will immediately (and without notice to the Customer) become both due and payable; and
16.6.4. The Company will be entitled to charge interest at the prime interest rate as published by First National Bank, plus 3%, on the total amount due, charged from the due date until the amount due is settled in full.
16.7. The Company reserves the right to apply and allocate payments received from the Customer as it deems fit to any debt then owing by the Customer.
16.8. The Company will be entitled to determine, in its sole and absolute discretion, the nature, extent and duration of any credit facilities granted to the Customer. The Company reserves the right to withdraw or amend any credit facilities which may have been granted to the Customer at any time and to require the Customer to furnish guarantees or Suretyships acceptable to the Company for its current or future obligations.
16.9. The Customer is not entitled to withhold payment for any reason whatsoever, notwithstanding that any dispute may be pending between the Parties, nor will the Customer be entitled to make any deduction from the Price or to apply set off in any manner.
16.10. In the event of the Customer authorising payment by way of debit order, then the Company will be entitled to draw against the Customer’s banking account any amount due and payable to the Company, including amounts in arrears.
17. CERTIFICATE
17.1. The Customer acknowledges that a certificate signed by any manager of the Company (whose authority and appointment will not be necessary to prove) as to the indebtedness of the Customer to the Company or as to any other fact in relation to any indebtedness of the Customer, will be prima facie proof of the amount of such indebtedness to the Company. Such certificate will be sufficient proof of the Customer’s indebtedness for the purposes of provisional sentence or summary judgment proceedings against the Customer, or for any other purpose whatsoever.
18. SUBCONTRACTING ARRANGEMENTS
18.1. The Company may, at its discretion, employ subcontractors for the execution of any portion of its obligations.
19. CREDIT BUREAU
19.1. The Customer consents and agrees that the Company may:
19.1.1. Perform a credit search on the Customer and the Customer’s Directors, Members or Partners records with a registered credit bureau;
19.1.2. Monitor the Customer and the Customer’s Directors, Members or Partners behaviour by researching the records with a registered credit bureau;
19.1.3. Use new information and data obtained from other registered credit bureaus in respect of the Customer and the Customer’s Directors, Members or Partners business relationship with the Company;
19.1.4. Record and transmit details in respect of:
19.1.4.1. the conduct of the Customer’s account in meeting its obligations on the account;
19.1.4.2. how the Customer has performed in meeting its obligations in terms of any agreement concluded between the Customer, the Customer’s Directors, Members or Partners, and the Company, with a registered credit bureau.
19.1.5. Convey the information provided herein by the Customer to a registered credit bureau, which information may be used by the registered credit bureau in the normal course of its business as a registered credit bureau accessed by the other Credit Providers (as defined in the National Credit Act 34 of 2005) and Customers of the registered credit bureau;
19.1.6. The Company undertakes to give the Customer notice prior to the forwarding of the details as mentioned in clause 19.1.4. above to any registered credit bureau.
20. BREACH OF TERMS
20.1. The Customer is deemed to have breached the Sales Terms or the Customer Agreement if the Customer:
20.1.1. fails to comply with any of the provisions in these Sales Terms or the Customer Agreement where:
20.1.1.1. such failure which is capable of being remedied and the Customer fails to remedy such breach within 7 days of having been called upon in writing by the Company to do so, or
20.1.1.2. such failure which is not capable of being remedied;
20.1.2. fails to make payment in accordance with the payment terms;
20.1.3. resolves to enter into, or enters into, any moratorium, arrangement, compromise or composition with any of its creditors, other than in the ordinary course of its business;
20.1.4. is, or is presumed to be, bankrupt, insolvent, applies to be deregistered or commits an act of insolvency;
20.1.5. ceases or threatens to cease to carry on all or a substantial part of its business or changes or proposes substantial changes to the nature or scope of its business;
20.1.6. is financially distressed or placed under business rescue or business rescue proceedings are pending or threatened against it or any steps have been taken, at any time, to commence business rescue proceedings against it;
20.1.7. makes a false declaration or submits an inaccurate or false report or any untrue document to the Company; or
20.1.8. is, other than for the purposes of reconstruction or amalgamation, placed in administration, receivership under voluntary or compulsory liquidation (whether provisional or final);
20.2. In the case of a breach as described in clause 20.1 (“the breach”), the Company will be entitled, without prejudice to any other rights or remedies which it may have in law, including the right to claim for damages:
20.2.1. To immediately suspend all Services or cancel any transaction, contract, agreement or the Customer Agreement and claim immediate performance of all obligations due by the Customer; and
20.2.2. Inform any reputable credit bureau of payment default (where applicable); and
20.2.3. Suspend the supply of the Goods or provision of Services if same have already been paid for, until such time as the breach has been remedied by the Customer;
20.2.4. Proceed with or participate in legal steps or proceedings to recover possession of the Goods; and
20.2.5. Proceed with or participate in legal steps or proceedings to ensure compliance with these Sales Terms and/or the Customer Agreement.
20.3. The Customer will not be entitled to claim damages in the case of any cancelation or suspension of Services by the Company in accordance with clause 20.2 above.
21. EXTENSION OF TIME
21.1. No leeway, extension of time or other lenience which the Company may offer to the Customer will in any way prevent the Company from enforcing any of its rights in the future, with or without notice, by requiring the Customer’s strict and timely compliance with each term and condition of these Sales Terms or the Customer Agreement.
22. LEGAL COSTS
22.1. To the extent permitted by law, should the Company elect to take or be involved in any legal steps or proceedings or actions to enforce, defend, preserve or protect any of the rights or provisions of the Sales Terms or the Customer Agreement, such costs and charges are payable by the Customer to the Company on demand by the Company.
23. DISPUTE
23.1. Should any dispute arise concerning these Sales Terms or the Customer Agreement, the Parties will make every effort to resolve the dispute by negotiation. This will require the one Party inviting the other, by Notice, to meet within 5 Business Days from date of the written invitation to attempt to resolve the dispute.
23.2. In the event that the dispute remains unresolved after the attempt set out in clause 23.1, the dispute shall be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa (or its successor-in-title) (“AFSA”) by an arbitrator appointed by AFSA.
23.3. Notwithstanding anything to the contrary contained in this clause 23, either Party is entitled to obtain interim relief on an urgent basis from any competent court having jurisdiction.
23.4. For the purposes of this clause 23 and for the purposes of having any award made by the arbitrator being made an order of court, each of the Parties hereby submits itself to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg.
23.5. This clause 23 is severable from the rest of these Sales Terms or Customer Agreement, and shall remain in full force and effect notwithstanding any termination or cancellation of the Customer Agreement, or any part thereof.
24. CESSION (TRANSFER) AND DELEGATION (HANDING OVER)
24.1. The Customer will not be entitled to transfer any of its rights to any other entity or person (this is known as ceding any of your rights) or transfer any of the Customers obligations or responsibilities to any other entity or person (this is known as delegating or handing over any of your obligations or responsibilities) without the prior written consent of the Company.
24.2. The Company undertakes not to withhold its consent unreasonably.
24.3. The Company is entitled to transfer all of its rights and obligations to another party without the consent of the Customer and the Customer hereby accepts and approves any such transfer of the Company’s rights and obligations. In the event of such transfer, the Company’s rights and obligations shall automatically be discharged.
25. NO REPRESENTATIONS, AMENDMENTS, VARIATIONS, CANCELLATION & WAIVER
25.1. The Customer acknowledges that the Company is not in any way bound by any oral statement, representation, guarantee, promise, undertaking, inducement or otherwise which may have been made at any time by any salesman, employee, representative or any Person acting or purporting to act for or on behalf of the Company, whether negligently or otherwise, unless such statement, representation, guarantee, promise, undertaking, warranty or inducement are supplied or made in writing by an employee duly authorised by written resolution of the board of Directors of the Company in response to a written enquiry specifying accurately and in complete detail what information is required.
25.2. A Party may not rely on any representation which allegedly induced that Party to enter into any transaction or any agreement with the other Party unless the representation is recorded in writing and signed by both Parties.
25.3. The Company may amend the Customer Agreement from time to time at its sole discretion for any reason, including as a result of any new or amended law, tax and regulation. The amended Customer Agreement will apply to all transactions entered into between the Company and the Customer from the date the new Sales Terms are issued on the Company’s website.
25.4. No agreement varying, adding to, deleting from or cancelling of the Customer Agreement, and no purported waiver of any right under the Customer Agreement, will be effective unless reduced to writing and signed by or on behalf of the Parties.
25.5. Communication between the Parties may occur via email transmission. The Company will have no liability for any loss or damage to any person or entity resulting from the use of email transmissions, including any consequential, incidental, direct, indirect, or special damages, such as loss of revenues or anticipated profits, or disclosure or communication of confidential or proprietary information.
26. CONFIDENTIAL INFORMATION
26.1. Each Party (“Receiving Party”) must keep confidential the Confidential Information which it may receive from the other Party (“Disclosing Party”) or which becomes known to the Receiving Party concerning the Disclosing Party as a result of the relationship between the Parties.
26.2. The Receiving Party agrees that in order to protect the proprietary interests of the Disclosing Party in its Confidential Information, the Receiving Party will:
26.2.1. only use the Confidential Information to comply with its responsibilities under this agreement;
26.2.2. only give the information to any of its employees or agents that need it, and only give as much of it as they need;
26.2.3. use reasonable security procedures to make sure employees or agents keep the information confidential;
26.2.4. get promises of confidentiality from those employees or agents who need access to the information;
26.2.5. not reveal the information to anyone else; and
26.2.6. not use it for any purpose other than this agreement.
26.3. At the end of the agreement, or on written request by a party, the Receiving Party will give back to the other, all originals and copies of Confidential Information of the other that the party has. If the other party agrees, the Receiving Party may destroy the Confidential Information in their possession.
26.4. The parties agree that these responsibilities will not apply to any information that:
26.4.1. is lawfully in the public domain (available to the general public) when a party received it;
26.4.2. lawfully becomes part of the public domain afterwards;
26.4.3. is given to the Receiving Party afterwards by a different person who is allowed to reveal the Confidential Information; or
26.4.4. is given to comply with a court order or other legal duty.
26.5. This clause 26 (Confidential Information) is separate from the rest of this agreement and remains valid for three years after the expiry of the agreement.
27. INTELLECTUAL PROPERTY RIGHTS
27.1. Each Party (including such Party’s holding company and subsidiaries) will retain all its rights in and to its intellectual property.
27.2. None of the intellectual property rights in the Company’s trademarks and brands will be used by the Customer for any purpose without the Company’s prior written consent.
28. LIMITATION OF LIABILITY
28.1. The Customer agrees to indemnify the Company, its directors, employees, officers, contractors and agents against any and all Losses suffered or incurred by the Company and any claims of whatsoever nature which may be made against the Company by the Customer, or any third party, as a result of or arising from:
28.1.1. Any act or omission by the Customer or its Personnel,
28.1.2. A breach of these Sales Terms or the Customer Agreement by the Customer or its personnel,
28.1.3. The use of the Goods sold by the Company to the Customer or the Services provided by the Company to the Customer, or at the direction of the Customer, unless such claims arise out of gross negligence of the Company.
28.1.4. The Goods or Services being defective (including without limitation due to any defect in the Goods, the Goods constituting an unsafe product, there being any failure, defect or hazard in any of the Goods or inadequate instructions or warnings being provided pertaining to any hazard arising from or associated with the use of the Goods). The Customer acknowledges that it is aware that the Company is only a distributor of the Goods and is not in any way involved in the manufacture of the Goods.
28.2. The Company’s maximum liability to the Customer for direct damages:
28.2.1. For claims related to Services rendered by the Company to the Customer will be the total amount the Customer paid the Company for Services in the preceding 12 months; and
28.2.2. For claims related to Goods sold by the Company to the Customer will be 10% of the amount paid by the Customer to the Company for the Goods in relation to which the damages relate.
28.3. The total aggregate liability for all claims under this agreement will never be greater than the maximum liability. This limitation applies to the extent allowed by any law that applies and regardless of the basis of the claim (whether in contract, delict, tort or any other legal basis).
28.4. Despite anything in this agreement, the Company will never be liable for any indirect, incidental, special or consequential damages or losses of any kind arising from the agreement. These include foreseeable or unforeseeable loss of profits, loss of goodwill or pure economic loss.
28.5. Where reference is made to the Company, such reference includes the Company, the Company’s sub-contractors and suppliers, and their respective partners, officers, directors, shareholders and employees.
29. USE OF CUSTOMER’S INFORMATION AND PRIVACY AND PROTECTION OF PERSONAL INFORMATION (POPIA)
29.1. In order to comply with its obligations under the Sales Terms and the Customer Agreement, the Company will process personal information about the Customer.
29.2. The Sales Terms and Customer Agreement are subject to the terms of the Privacy Policy. For more information about how the Company process the personal information of the Customer, the Customer can access the Privacy Policy at https://za.lamarzoccohome.com/en/Privacy
30. NOTICES
30.1. The Company chooses its domicillium citandi et executandi (“Domicile Address”) for the delivery of notices, legal processes and other documents as 23 Susan Street, Strydom Park, Randburg, marked for the attention of the Financial Manager).
30.2. The Customer chooses as its Domicile Address for the delivery of notices, legal processes and other documents as the address listed in the Customer Application in the section Address of principal place of business of the Customer, or in the absence of a Customer Application form, the business address provided by the Customer to the Company for the delivery of Goods or the provision of Services.
30.3. Either party may update it Domicile Address by providing the other party with the updated address in writing.
30.4. A written notice or communication actually received by either Party is adequate written notice or communication to the other Party.
31. FORCE MAJEURE
31.1. No party is responsible for any breach of this agreement caused by Force Majeure Event or any other circumstances beyond its control.
31.2. If there is an event of force majeure, the party affected will tell the other immediately of:
31.2.1. The cause, nature and extent of the circumstances;
31.2.2. The expected duration of the circumstances; and
31.2.3. The extent to which its performance will be affected;
and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.
31.3. If a party cannot fulfil a material part of its responsibilities under this agreement for more than 30 days because of force majeure, the other party may cancel this agreement, without liability to the affected party, on seven days’ written notice.
32. UNENFORCEABLE PROVISIONS
32.1. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this agreement, provided that it does not change the purpose.
33. RECEIPT OF ELECTRONIC DOCUMENTS
33.1. The Customer hereby agrees to the receipt of any and all documentation from the Company from time to time in electronic format, including but not limited to tax invoices, credit notes and statements. Tax Invoices and credit notes will be emailed to the email address designated by the Customer for billing purposes, as indicated in the relevant section of the Customer Application, unless the Customer requests in writing that such documents be sent to another email address or physical address.
34. JURSIDICTION AND APPLICABLE LAW
34.1. South African Law governs this agreement.
34.2. The Parties consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that the Company may bring against the Customer in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to the Company’s right to institute any action in any other court having jurisdiction.
35. REVOCATION OF ALL PREVIOUS TERMS AND AGREEMENTS
35.1. These Sales Terms and ensuing Customer Agreement revokes and supersedes all other written and oral agreements in existence between the Parties in respect of the same subject matter.