TERMS OF USE AND PRIVACY : TERMS AND CONDITIONS
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SODESIGNS’s TERMS
Sodesign Lifestyles Close Corporation (Sodesign Lifestyles trading as SOdesigns) (SODESIGNS)
SODESIGNS’s Terms in their prevailing form from time to time (SODESIGNS’s Terms) are applicable to all business dealings (including those with client and suppliers) and all agreements. Products and Services are made available to customers subject to SODESIGNS’s Terms. The prevailing SODESIGNS Terms are available at www.SOdesigns.co.za.
1.1 DEFINITIONS
The following terms shall in all agreements to which SODESIGNS is a party have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings
ABSA ABSA Bank Limited
Business Day any day other than a Saturday or Sunday or a proclaimed public holiday in South Africa
Customer SODESIGNS’s customer including any consumer of Products
Documentation SODESIGNS’s Terms, SODESIGNS Client Acceptance, Estimate, Quations, Appointment letter, SODESIGNS’s notifications of receipt of and acceptance of contracts, proof of payment for orders, invoices, delivery notes issued by SODESIGNS.
SODESIGNS SOdesigns (Close Corporation) - Registration Number 2006/017719/23
SODESIGNS’s Terms SODESIGNS’s terms and conditions as prevailing from time to time and as available at www.SOdesigns.co.za
Parties the Customer and SODESIGNS (and Party - the Customer or SODESIGNS)
Prime the publicly quoted nominal rate of interest per annum of ABSA (as certified by any General Manager of that bank, whose appointment and authority it shall not be necessary to prove) at which that bank lends monies on overdraft and without security to its most favoured corporate borrowers, which interest shall be calculated and payable monthly in advance
Product the products and services as referred to in any Documentation or whatever products and services have been sold by SODESIGNS to a Customer including all materials and sub contractors works.
Services means consultations, procurement on behalf of customer and advice provided by SOdesigns to Customer. This includes all Sub Contractors works
Quotation quotation, tender, estimate, price list or other offer to contract South Africa the Republic of South Africa
1. INTERPRETATION
The following interpretation provisions shall apply to all agreements to which SODESIGNS is a party.
(a) The headings in SODESIGNS’s Terms and/or any agreement entered into by SODESIGNS are for convenience only and shall not be deemed part of SODESIGNS’s Terms and/or any agreement entered into by SODESIGNS nor shall they be taken into consideration in the interpretation or construction thereof.
(b) Words importing the singular only also include the plural and vice versa where the context requires.
(c) Words denoting any gender shall include all genders.
(d) Words importing persons shall include firms, partnerships, corporations, joint ventures and any organisation having a legal personality.
(e) If figures are referred to in numerals and words, the words shall prevail in the event of any conflict between the two.
(f) Where a number of days is prescribed such number shall be reckoned exclusively of the first and inclusively of the last day.
(g) Where the day upon or by which any act is required to be performed is not a Business Day, the Parties shall be deemed to have intended such act to be performed upon or by the first Business Day thereafter.
(h) Reference to any person or public organisation shall include the successors (statutory or otherwise) and permitted assignees or successors in title of such person or public organisation or to any organisation or entity which has taken over the functions or responsibilities of such public organisation irrespective of whether such assignment or succession occurred before or after the date of SODESIGNS’s Terms and/or any agreement entered into between the Parties.
(i) References to Terms, agreements, documents or other instruments include (subject to all relevant approvals) a reference to Terms and any agreement, document or instrument as amended, supplemented, substituted, ceded or assigned.
(j) Where an expression has been defined (whether above or elsewhere in SODESIGNS’s Terms and/or any agreement entered into by SODESIGNS) and such definition contains a provision conferring rights or imposing obligations on any Party, effect shall be given to that provision as if it were a substantive provision contained in the body of SODESIGNS’s Terms and/or any agreement entered into by SODESIGNS.
(k) The rule of construction that an agreement shall be interpreted against the party responsible for the drafting or preparation of an agreement shall not apply.
(l) Words of inclusion are not words of limitation.
(m) The expiration or termination of SODESIGNS’s Terms and/or any agreement entered into by SODESIGNS shall not affect such of the provisions of SODESIGNS’s Terms and/or any agreement entered into by SODESIGNS as 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 clauses themselves do not expressly provide for this.
(n) Trade terms shall where appropriate, and where not consistent with the provisions of any agreement, be interpreted in accordance with the International Rules For the Interpretation of Trade Terms of the International Chamber of Commerce.
2 OVERRIDING EFFECTS
SODESIGNS’s Terms shall apply without alteration or variation and shall have the effect of specifically excluding any terms howsoever stipulated, incorporated or referred to by any Customer including without limitation terms stipulated, incorporated or referred to in any negotiations, Quotation, estimate order, invoices, statements or other documents. Terms and conditions of the Customer shall, unless otherwise specifically agreed in writing by a duly authorised representative of SODESIGNS, have no application whether or not they conflict with SODESIGNS’s Terms.
3 APPLICATION TO FUTURE CONTRACTS AND DEBTS
3.1 In the absence of express written agreement to the contrary, SODESIGNS’s prevailing Terms shall apply to any future sales by SODESIGNS to any Customer.
3.2 SODESIGNS’s Terms shall be applicable to all debts which the Customer may owe to SODESIGNS.
4 INTELLECTUAL PROPERTY AND COPYRIGHT
4.1 All intellectual property rights associated with Product vest in SODESIGNS and/or its suppliers. Notwithstanding anything provided for in any agreement, the Customer undertakes to refrain from doing anything or causing anything to be done which infringes upon SODESIGNS’s (and/or its suppliers’) intellectual property rights, including but not limited to patent, trade mark, trade name and copyright.
4.2 The Customer acknowledges and will be bound by all copyright vested in SODESIGNS. The Customer shall not duplicate copyrighted material whether on websites or otherwise without the prior written permission of SODESIGNS. SODESIGNS shall in its sole discretion be entitled without notice to withdraw any permission granted.
4.3 The Customer indemnifies SODESIGNS and holds SODESIGNS harmless in respect of any and all claims by any third party whomsoever for any breach by the Customer of the provisions of this clause.
5 PRICE LISTS
SODESIGNS prices and other SODESIGNS publications and websites are for information only, do not constitute or form part of any Quotation, Estimate or Documentation and constitute merely a guide to Customers. SODESIGNS reserves the right to vary the prices of Product and Services from time to time.
6 QUOTATIONS, OFFERS, ORDERS AND INVOICES
6.1 SODESIGNS shall not be bound by Quotations and Estimates.
6.2 SODESIGNS shall only be bound by an order upon written acceptance - signed by a duly authorised representative of SODESIGNS - of a written order and payment by the Customer to SODESIGNS of the amount due in respect of such order.
6.3 All orders are accepted by SODESIGNS subject to and on the basis of SODESIGNS’s Terms. SODESIGNS may at its sole election decline any orders, estimates or quotations.
6.4 Orders constitute irrevocable offers to purchase Product from SODESIGNS’s usual prices as at the date when the Customer places the order for Product.
6.5 Orders accepted by SODESIGNS shall not be varied or cancelled by the Customer, except with the written consent of a duly authorised SODESIGNS representative.
6.6 The Documentation constitutes the complete and exclusive statement of the purchase agreement.
6.7 The Customer shall be bound by the invoice issued by SODESIGNS detailing Product ordered and bought and the price thereof.
7 PAYMENT
7.1 The Customer shall pay for Product on receipt of SODESIGNS’s invoice of an order detailing the amount due to SODESIGNS.
7.2 If the Customer uses a postal or similar service to effect payment, such service provider shall be deemed to be the agent of the Customer. If the Customer uses Internet banking or effects electronic transfer of monies, the bank shall be deemed to be the agent of the Customer.
7.3 SODESIGNS may appropriate and/or allocate all payments made by the Customer to such accounts as SODESIGNS may in its sole and absolute discretion decide.
7.4 Any party owing any monies to SODESIGNS shall, under no circumstances, set off and/or deduct any amount from amounts due to SODESIGNS without the prior written authority of SODESIGNS.
8 NEGOTIABLE INSTRUMENTS
Acceptance of a negotiable instrument offered by the Customer shall not be deemed to be a waiver of SODESIGNS’s rights under any agreement. In relation to cheques furnished by the Customer to SODESIGNS, the Customer waives its right to insist on notice of dishonour or protest being given to it in the event that the cheque is dishonoured.
9 DELIVERY
9.1 The Customer shall at all times promptly provide ready accesses and all services and information necessary to enable SODESIGNS to carry out SODESIGNS’s obligations to the Customer without delay.
9.2 Time shall not be of the essence of agreement or delivery of any Product. Delivery dates and times are approximate and are dependent on prompt compliance by the Customer with all the Customer’s obligations. SODESIGNS shall make every endeavour to ensure that delivery is made timeously, but SODESIGNS shall not be liable in any manner whatsoever for delivery failures or delays.
9.3 SODESIGNS shall be entitled to effect part deliveries.
9.4 SODESIGNS shall be entitled to effect deliveries through a carrier of SODESIGNS’s choice. Any third party effecting delivery including a postal or similar service chosen by the Customer or SODESIGNS to deliver or return Product shall be deemed to be the agent of the Customer.
9.5 Delivery of Product (including Product being either returned or subsequently redelivered) between SODESIGNS and the Customer shall be at the risk of the Customer.
9.6 If execution of any order or agreement is delayed without fault on SODESIGNS’s part
9.6.1 SODESIGNS shall be entitled to a reasonable extension within which to execute that order or agreement;
9.6.2 any additional costs incurred by SODESIGNS including the costs of preparation and handling for storage, storage, inspection, demurrage, interest, insurance and any other charges occasioned by the delay of delivery shall be for the Customer’s account; and
9.6.3 the risk of loss of or damage to such Product shall pass to the Customer if it has not so passed.
9.7 A delay shall be deemed to have been caused without fault on SODESIGNS’s part if it is due to default or request on the part of the Customer or to any circumstances which SODESIGNS cannot reasonably and practicably control in the normal conduct of its business including any act of God, fire, flood, drought, war, civil disturbance, riot, state of emergency, strike, lock out or other labour dispute or unrest, legislation, import control, shipping and other transport delays and default on the part of any third party manufacturer or supplier.
9.8 The provisions of clause 9 shall apply notwithstanding that a previous delay may have occurred for any other reason.
9.9 The Customer shall be responsible for receiving, unloading and checking the Product upon delivery (whether at the Customer’s premises or elsewhere) in the presence of the party effecting the delivery. Any delivery note signed by the Customer or by anyone else at the agreed place of delivery, shall be prima facie proof that the Product listed thereon has been delivered in good condition and free of defects. In the event of shortages in or damage to Product included in a delivery and/or in the event of any Product being in a defective state, the Customer shall notify SODESIGNS thereof in writing within 24 hours of that delivery and any delivery note must upon delivery be endorsed by the Customer accordingly. Unless this action (both notification and endorsement) has been taken Product will be deemed to have been delivered to the Customer in perfect condition, claims will not be recognised and SODESIGNS’s liability will be limited accordingly.
9.10 Any delivery note (copy or original) in the possession of SODESIGNS, and purportedly signed by the Customer and/or its authorised representative and/or its nominated agent, shall be prima facie proof that delivery was made to the Customer and shall upon production constitute prima facie proof of delivery including for the purposes of any litigation.
10 RETURNED GOODS
SODESIGNS is under no obligation to accept return of Product, the Customer may apply to SODESIGNS for permission to return Product and if written permission is given by SODESIGNS’s for such return, the following will apply
10.1 all Product must be returned within 5 (five) Business Days of receipt of SODESIGNS’s written permission to return Product and must be clean, saleable, unopened, unused and undamaged and in their original packaging;
10.2 SODESIGNS will without the necessity of any further agreement be entitled to claim from the Customer a handling charge of 10% (ten percent) of the invoice price of Product so returned;
10.3 SODESIGNS may at its option repair or replace, or refund a proportionate share of the price in respect of, any defective Product against return of the Product concerned; and
11 NO WARRANTIES, LIMITATION OF LIABILITY AND INDMNITIES
11.1 SODESIGNS gives no warranties or guaranties whatsoever (including at common law warranties and guaranties) in relation to Product and any Customer and/or consumer rights (if any) shall be strictly limited solely to any warranties and guarantees as may be available from Product manufacturers, Sub Contractors and Product suppliers and Sub Contractors to SODESIGNS. Without derogating from the aforegoing
11.1.1 SODESIGNS does not warrant or represent that any information furnished in connection with Product is correct unless it is given in writing duly signed by an authorised representative of SODESIGNS;
11.1.2 SODESIGNS makes no representations whatsoever, and gives no guarantees against latent or patent defects, in respect of Product and Services all conditions and warranties whatsoever whether statutory, implied or otherwise are hereby expressly excluded and no claim shall lie against SODESIGNS arising out of or in connection with any defects in, or unsuitably of, Product;
11.1.3 SODESIGNS specifically disclaims any implied warranty of merchantability, suitability 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 SODESIGNS shall be considered to be a warranty by or binding on SODESIGNS. Any such statements made shall not give rise to any liability of whatsoever nature on the part of SODESIGNS, SODESIGNS’s employees, subcontractors or subsidiaries and in no event will SODESIGNS be liable to the Customer for special, indirect or consequential damages including but not limited to loss of profits;
11.1.4 neither SODESIGNS nor any of SODESIGNS’s suppliers, associate and subsidiary companies, directors, officers, employees or agents shall be liable for
11.1.4.1 any damage arising from any misuse of the Product;
11.1.4.2 any specialist or unusual requirements of the Customer other than those stipulated in writing in the Customer’s order as accepted in writing by SODESIGNS;
11.1.4.3 any negligent or innocent misrepresentations made to a third party including the Customer and such third party including the Customer shall not be entitled to cancel any agreement with SODESIGNS on such grounds;
11.1.4.4 any claims arising out of, or in connection with, any defects in, or unsuitability of Product;
11.1.4.5 any loss or damage of any description suffered by a third party including the Customer arising from any cause whatsoever in connection with any agreement or Product or the use thereof, whether such loss or damage results from breach of contract (whether fundamental or otherwise), delict, negligence or any other cause and whether the agreement is cancelled or not; 12.1.5 any liability of SODESIGNS under SODESIGNS’s Terms shall only be in respect of defects in Product existing before delivery to the Customer;
11.1.6 SODESIGNS’s liability in respect of Product and the supply thereof shall at SODESIGNS’s election
11.1.6.1 not exceed the cost of Product supplied in response to a specific order.
11.1.6.2 be limited to replacing the defective Product provisions;
11.1.7 SODESIGNS shall not incur any liability whatsoever of whatever nature and howsoever arising (including whether in contract or delict) for any injury, loss or damage to any person or property arising from the use of the Product.
11.2 Every party to an agreement with SODESIGNS unconditionally and irrevocably indemnifies and holds SODESIGNS and SODESIGNS’s suppliers, associate and subsidiary companies, subcontractors, directors, officers, employees or agents (SODESIGNS Parties) harmless against all and any claims, loss, liability, damage, cost, expense, fine, penalty or interest of whatsoever nature and howsoever arising and of whatsoever nature that may be brought or threatened against SODESIGNS or its employees by any third party arising from or in connection with
11.2.1 any defect, latent or otherwise in any Product supplied by SODESIGNS;
11.2.2 the failure of such party or its directors, employees, agents, servants, representatives, contractors, or any other persons for whom such party may be liable in law, to comply with its obligations under any agreement with SODESIGNS.
11.3 An indemnifying party in terms of SODESIGNS’s Terms or any agreement entered into by SODESIGNS shall be obliged to effect payment under any indemnity as soon as any loss, liability or damage of the nature aforesaid has been incurred or sustained by SODESIGNS.
11.4 Should any claim be made by any third party against which SODESIGNS is indemnified in terms of this clause, the indemnifying party shall be entitled to defend the action (where necessary in the name of SODESIGNS) and to control the proceedings in regard thereto, provided that the indemnifying party shall first have indemnified SODESIGNS to SODESIGNS’s reasonable satisfaction against all and any costs which may be incurred in resisting any such claim as aforesaid.
11.5 If SODESIGNS rejects liability in writing for defective Product after being duly notified thereof in accordance with the provisions of SODESIGNS’s Terms, the Customer’s right to pursue litigation in relation to such defective Product against SODESIGNS or SODESIGNS’s suppliers shall prescribe six months after the date on which such liability was rejected by SODESIGNS.
11.6 Any failure by the Customer to comply with the provisions of SODESIGNS’s Terms and/or any agreement entered into by SODESIGNS shall relieve SODESIGNS of all and any further liability whatsoever.
12 REPAIRS
In the case of repairs undertaken by SODESIGNS, repair times given are merely estimates and are not binding on SODESIGNS.
13 BREACH, INTEREST AND TERMINATION
13.1 Should any defaulting party (the Defaulting Party), including SODESIGNS commit a breach of any of the provisions of any agreement entered into by SODESIGNS, and should the Defaulting Party fail to remedy such breach within 48 (forty eight) hours after receipt of notice from the other party (the Aggrieved Party) calling upon the Defaulting Party to remedy any breach, or should the Defaulting Party repeatedly breach any of the terms of the agreement in such manner as to justify the Aggrieved Party holding that the Defaulting Party’s conduct is inconsistent with the intention or ability of the Defaulting Party to carry out the terms of the agreement, , the Aggrieved Party/ies shall be entitled to cancel the relevant agreement against the Defaulting Party in question or to claim immediate payment and/or perfor¬mance by the Defaulting Party of all of the Defaulting Party’s obligations whether or not the due date for payment and/or performance shall have arrived, in either event without prejudice to the Aggrieved Party/ies’ rights to claim damages and without prejudice to such rights as the Aggrieved Party may have at law; provided always that notwithstanding anything to the contrary contained in SODESIGNS’s Terms and any agreement entered into by SODESIGNS, the Aggrieved Party shall not be entitled to terminate SODESIGNS’s Terms or any agreement entered by SODESIGNS for any breach by the Defaulting Party unless such breach is a material breach going to the root of SODESIGNS’s Terms and/or any agreement entered into by SODESIGNS and is incapable of being remedied by a payment of money or, if it is capable of being remedied by a payment of money, the Defaulting Party fails to pay the amount concerned within 3 (three) Business Days after such amount has been determined.
13.2 Any amount falling due for payment by any party in terms of or pursuant to SODESIGNS’s Terms and any agreement entered into by SODESIGNS, including any amount which may be payable as damages, shall bear interest thereon, at Prime and calculated from the due date for payment (or, in the case of any amount payable by way of damages, with effect from the date upon which those damages are sustained) to the actual date of payment thereof, both dates inclusive.
13.3 If any party breaches any obligation owed by it to SODESIGNS, whether under SODESIGNS’s Terms and/or any agreement entered by SODESIGNS or otherwise, , SODESIGNS shall be entitled after giving notice pursuant to the provisions of 14.1 and in the event of such party continuing to remain in breach as aforesaid, without prejudice to any other remedies to which SODESIGNS may be entitled
13.3.1 to claim immediate payment of all amounts payable by such party to SODESIGNS, whether due under SODESIGNS’s Terms and/or any agreement entered into by SODESIGNS, and whether then due and payable or not;
13.3.2 to suspend performance of any obligation owed by SODESIGNS and to claim any additional costs and expenses incurred by SODESIGNS as a result thereof. SODESIGNS shall further be entitled to an extension of time for performance of its obligations equal to the period the above applies, whether or not it elects to suspend performance and the provisions of 10.6 shall apply mutatis mutandis;
13.3.3 to cancel the relevant agreement; and/or
13.3.4 to retain as a penalty all amounts paid by the Customer or alternatively to claim such damages as it may have suffered.
13.4 SODESIGNS’s rights in terms of SODESIGNS’s Terms and any agreement entered into by SODESIGNS shall not be exhaustive and shall be in addition to SODESIGNS’s common law rights.
13.5 SODESIGNS shall have the right but not be obliged, to cancel any agreement entered into by SODESIGNS at any time by addressing a written notice to that effect to the other party/ies to any such agreement if the other party/ies
13.5.1 commits an act which is or would (if committed by a natural person) be an act of insolvency within the meaning of section 8 of the Insolvency Act, 1936 or section 344 of the Companies Act, 1973; or
13.5.2 allows any judgment against it to remain unsatisfied for a period of 5 (five) Business Days; or
13.5.3 compromises or attempts to compromise or defer payment of any debt owing by it to any of its creditors; or
13.5.4 being a juristic person, is provisionally or finally liquidated, removed from the register of companies or placed under judicial management, or takes any steps for its voluntary winding-up or any analogous event occurs under the laws of the jurisdiction in which the Dealer is incorporated; or
13.5.5 generally does or omits to do or suffers anything to be done which may in any way prejudice SODESIGNS’s rights under any agreement entered into with SODESIGNS or brings SODESIGNS into disrepute; or
13.5.6 disposes of all or a material portion of its assets or business or ceases to conduct its business without the prior written consent thereto of SODESIGNS; or
13.5.7 generally does or omits to do or suffers anything to be done which may in any way prejudice SODESIGNS’s rights under any agreement with SODESIGNS; or
13.5.8 undergoes a material adverse change in its financial position (as determined by SODESIGNS within its sole and absolute discretion); or
13.5.9 encumbers or passes any other security whatsoever over a material portion (as determined by SODESIGNS within its sole and absolute discretion) of its assets (without SODESIGNS’s prior written consent thereto); or
13.5.10 undergoes a change of control, in that the shareholders which have the right to vote the majority of the votes attaching to its entire ordinary share capital from time to time, cease to control such votes for any reason whatsoever; or if
13.5.11 any event of default or analogous event occurs in terms of any agreement to which any other party may at any time be party which may, in the discretion of SODESIGNS, affect the ability of such other party to comply with all or any of its obligations to SODESIGNS;
13.5.12 any representation or warranty given by any party to SODESIGNS in terms any agreement, proves to be incorrect in any manner or respect whatsoever.
13.6 If any agreement between the Customer and SODESIGNS terminates for any reason whatsoever, any unexecuted orders placed by the Customer shall, at SODESIGNS’s option, remain of full force and effect to all intents and purposes as if any such agreement had not terminated.
13.7 Upon the termination of any agreement all property and documentation, including but not limited to all samples, pamphlets, catalogues relating to any products as well as all architectural plans and designs shall be delivered and handed over to SODESIGNS or be disposed of as SODESIGNS shall reasonably direct.
14 GOVERNING LAW, JURISDICTION AND LEGAL PROCEEDINGS
14.1 SODESIGNS’s Terms and any agreement entered into by SODESIGNS and all modifications and amendments thereof, shall be governed by and decided upon and construed under and in accordance with the laws of South Africa.
14.2 Any party entering into an agreement with SODESIGNS agrees to submit to the jurisdiction of South African courts having jurisdiction in respect of Johannesburg and/or Cape Town.
14.3 SODESIGNS shall in relation to SODESIGNS’s Terms and any agreement entered into by SODESIGNS, at its option and notwithstanding that the amount of its claim or the nature of the relief sought by it exceeds the jurisdiction of the Magistrate’s Court, be entitled to institute action out of such court.
14.4 A certificate in relation to SODESIGNS’s Terms and any agreement entered into by SODESIGNS issued and signed by any director or manager of SODESIGNS, whose authority need not be proved, in respect of any indebtedness of any party that has entered into an agreement with SODESIGNS or in respect of any other fact, including the fact that such goods were sold and delivered, shall be prima facie proof of the customer’s indebtedness to SODESIGNS and prima facie proof of delivery of the goods in terms any agreement with a Customer.
14.5 Any printout of computer-generated information tendered in evidence by SODESIGNS shall be admissible evidence and any party to an agreement with SODESIGNS shall not be entitled to object to the admissibility of such evidence on the grounds that such evidence is computer evidence or hearsay evidence or that such evidence or document is not original.
14.6 In the event of any party to an agreement with SODESIGNS breaching any of its obligations and/or failing to make payment of any amount due to SODESIGNS timeously, such party agrees to pay, and shall be liable to pay, all legal costs incurred by SODESIGNS in enforcing its rights in terms of SODESIGNS’s Terms and/or any agreement entered into with SODESIGNS the Parties on the attorney/own client scale including collection charges, tracing agent’s fees, air fares and expert’s fees.
15 DOMICILIA AND NOTICES
15.1 SODESIGNS chooses domicilia citandi et executandi for all purposes as 603 Portside, 1 Upper Portswood Road, Greenpoint Cape Town 8005
15.2 The domicilia citandi et executandi chosen in writing by a party to an agreement with SODESIGNS, or in the absence of such written choice of domicilia citandi et executandi the most recent physical address furnished to SODESIGNS by a party to an agreement with SODESIGNS, shall be recognised as that party’s domicilium citandi et executandi (domicilium) for all purposes of any agreements between SODESIGNS and that party, whether in respect of the serving of any Court process, notices, the payment of any amount or communications of whatever nature.
15.3 Any notice required or permitted under SODESIGNS’s Terms or any agreement entered into with SODESIGNS shall be valid and effective only if in writing. All notices, correspondence, documentation or communications of whatsoever nature including without limitation drawings, reports, certificates and specification which are to be given, submitted or prepared under or in connection with SODESIGNS’s Terms and/or any agreement entered into by SODESIGNS shall be in English.
15.4 Any notice to a party under SODESIGNS’s Terms or any agreement entered into with SODESIGNS and contained in a correctly addressed envelope and
15.5.1 delivered by hand to a responsible person during ordinary business hours at such party’s chosen domicilia citandi et executandi, shall be deemed to have been received on the date of delivery;
15.5.2 posted by prepaid registered mail to such party’s chosen domicilia citandi et executandi, shall be deemed to have been received within 10 (ten) Business Days of the date of posting thereof.
15.6 Notwithstanding anything to the contrary contained in this clause, a written notice or communication actually received by a party under SODESIGNS’s Terms or any agreement entered into with SODESIGNS shall be an adequate written notice or communication to such party, notwithstanding that such notice was not delivered at such party’s chosen its chosen domicilia citandi et executandi and shall be deemed to have been received on the date of delivery.
15.7 Any party may under SODESIGNS’s Terms or any agreement entered into with SODESIGNS by notice to another other party change its chosen domicilia citandi et executandi to another physical address in South Africa.
16 FORCE MAJEURE
16.1 No party to an agreement with SODESIGNS including SODESIGNS shall be responsible or liable for any delay or non-performance of its obligations directly caused by or resulting from Acts of God including major accident, fire or flood; sabotage or any officially declared state of emergency; embargoes, boycotts, strikes, lockouts; restrictions imposed by any Government or Governmental authority; or without limitation, any other cause of a force majeure nature beyond the reasonable control of a party, which prevents any performance.
16.2 Any party affected by any of the conditions referred to in 17.1 above shall give the other party/ies written notice of the existence of such condition within 5 (five) Business Days of its existence being discovered.
16.3 No party shall be entitled to rely on the provisions of 17.1 above unless it has given notice as envisaged in 17.2 above.
16.4 In the event of the force majeure situation continuing for a period of more than 2 (two) calendar months after the giving of the notice referred to in 17.2 above any party including SODESIGNS shall be entitled to terminate any agreement entered into between the parties by giving written notice to that effect to the other party in which event no party shall be liable to any other party for damages as a result of the force majeure.
17 GENERAL
17.1 entire agreement
17.1.1 The Documentation together with the Estimates and/or Quotations in relation to any particular order constitutes the entire agreement between SODESIGNS and the Customer in relation to that order.
17.1.2 Any agreement between the SODESIGNS and another party/ies embodies and constitutes the entire and sole agreement between the parties as to the subject matter thereof and the latest agreement on any particular matter shall prevail and any prior or contemporaneous agreements between such parties with respect such a matter shall be of no further effect and force. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded in an agreement. A party entering into any agreement with SODESIGNS (including SODESIGNS) shall do so on the basis that such party acknowledges that it has had or, as the case may be, is deemed to have had, full opportunity to include any representation or warranty (if any) made to it by any party in the process leading up to the conclusion of any agreement.
17.1.3 No amendment, addition to, deletion, variation or agreed cancellation of any agreement entered into SODESIGNS and another party/ies shall be of any force or effect unless in writing and duly signed by or behalf of the parties by an authorised representative and then such addition, variation or agreed cancellation shall be effective only in the specific instance and only for the purpose and to the extent for which made or given.
17.2 exclusion of pactum de non potendo
All agreements to which SODESIGNS is a party are concluded on the basis that the parties to such agreement specifically agree to exclude the defence of pactum de non potendo, whether exercised orally or in writing.
17.3 co-operation
Parties who have entered into any agreement with SODESIGNS (including SODESIGNS) undertake at all times to do all such things, to perform all such acts and to take all such steps including without limitation, signing all such documents as may be from time to time be required to give effect to what is intended in any such agreement and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of such agreement.
17.3.1 rights
The respective rights and remedies of any party under any agreement entered into with SODESIGNS shall be cumulative, may be exercised as often as the parties consider appropriate and are in addition to their respective rights and remedies in common law.
17.4 expiry or termination
17.5.1 The expiry or termination of SODESIGNS’s Terms and/or any agreement entered into with SODESIGNS shall not prejudice the rights of any party thereto in respect of any antecedent breach or non-performance by any party of any of the terms or conditions thereof.
17.5.2 No party to any agreement with SODESIGNS (including SODESIGNS) shall have any rights or remedies against the other party on termination save for the rights and remedies specified in the relevant agreement, provided that in cases where a remedy other than termination is sought, the provisions of this clause shall not detract from such other rights or remedies as may be available to a party at law.
17.6 Waivers
17.6.1 The rights and remedies of the parties to any agreement with SODESIGNS (including SODESIGNS) whether arising under an agreement or in common law shall not be capable of being waived or varied otherwise than by an express waiver or variation in writing duly executed by an authorised representative of the relevant party, and shall be strictly construed and effective only in the specific instance and for the sole purpose and only to the extent expressly granted, and shall not operate so as to preclude a party from exercising its rights strictly in accordance with an agreement.
17.6.2 No waiver, variation, relaxation, suspension, indulgence, condemnation, leniency or extension of time made or given by any party in respect of any provision of any agreement entered into between SODESIGNS and another party/ies or in common law, or of any arising rights and remedies or failure to exercise or enforce any provisions of any agreement shall constitute or operate as
17.6.2.1 a waiver of such party’s rights whether of a like or different character nor shall any single or partial exercise of any such power, right or remedy preclude any other or further exercise thereof nor the exercise of any other power, right or remedy of such party nor affect in any way such parties’ (including SODESIGNS) right to require the performance of such provision at any time in the future, nor shall a waiver of a subsequent breach nullify the effectiveness of the provision itself;
17.6.2.2 an estoppel against any party in respect of its rights under SODESIGNS’s Terms and/or any agreement entered into between the parties.
17.7 Cession and Assignment
17.7.1 No party to an agreement with SODESIGNS (excluding SODESIGNS) may cede its rights nor assign its obligations under such agreement unless SODESIGNS agrees in writing to such cession and/or assignment.
17.7.2 SODESIGNS shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of any agreement to any third party without prior notice to the Customer.
17.8 Change of address and/or information
17.8.1 The Customer undertakes to notify SODESIGNS within 5 (five) Business Days of any change of address or any changes in the information that the Customer has furnished to SODESIGNS.
17.8.2 The Customer undertakes to send a written notice should the scope of project change during the agreed course of contract as signed for in the Acceptance letter – Appointment letter. Should the customer fail to send a written notice of confirmation within 8 hours it will be deemed acceptable for SODESIGNS to send through a written confirmation with regards to such change in scope as confirmation and acceptance of such change, and the customer should be bound be such confirmation.
17.8.2 Any party to any agreement with SODESIGNS shall be obliged to inform SODESIGNS in writing at least 10 (ten) Business Days prior to any intended selling or alienating of the whole of or any part of that party’s business and a failure to do so will constitute a material breach of each and every agreement between the Customer and SODESIGNS entitling SODESIGNS to cancel any such agreements without further notice to the party.
17.9 No expectation of Renewal
A party that has entered into an agreement with SODESIGNS shall not be entitled to assert any expectation of renewal of any such agreement.
17.10 Severability
17.10.1 If any one or more of the provisions of SODESIGNS’s Terms and/or any agreement entered into by SODESIGNS is or becomes declared or adjudged (formally or informally) by competent authority to be invalid, unenforceable, defective or illegal for any reason whatsoever then
17.10.2 the remaining terms and provisions of SODESIGNS’s Terms and/or any agreement entered into between parties shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability, defect or illegality goes to the root 17.10.3 of SODESIGNS’s Terms and/or any term of any such agreement;
17.10.4 SODESIGNS’s Terms and any agreement thus continuing shall (subject and without prejudice to any appeal to higher authority as to the status of that provision) exclude the offending provision but, if such deletion substantially affects or alters the commercial basis of SODESIGNS’s Terms and/or any such agreement, then SODESIGNS’s Terms and any such agreement including such provision shall be amended in such manner as the parties agree which will, while not being void or unenforceable, most nearly achieve the object of the allegedly void or unenforceable provisions.
17.10.5 Each of the terms in any agreement entered into by SODESIGNS, shall be separate and divisible and if any such term or portion of such term becomes unenforceable for any reason whatsoever, then that term and/or the remaining portion shall be severable and shall not affect the validity of the other terms or of any agreement as a whole.
17.11 disclosure of personal information
17.11.1 SODESIGNS has the Customer’s consent at all times to contact and request information from any persons, credit bureaus or businesses and to obtain any information which SODESIGNS considers relevant to the Customer’s credit assessment.
17.11.2 The Customer agrees and understands that information pertaining to the Customer and given in confidence to SODESIGNS by a third party will not be disclosed to the Customer.
17.11.3 The Customer consents to and authorises SODESIGNS at all times to furnish credit information concerning the customer’s dealings with SODESIGNS to a credit bureau and to any third party seeking a trade reference regarding the Customer in the Customer’s dealings with SODESIGNS.
17.12 Confidentiality
All agreements to which SODESIGNS is a party are concluded on the basis that the parties reciprocally
17.12.1 undertake to treat as strictly confidential all information of any nature whatsoever which any party may obtain from any other party pertaining to the conclusion or implementation of the provisions of any agreement (the party receiving such information hereinafter referred to as the Recipient Party and the party disclosing such information hereinafter referred to as the Disclosing Party) howsoever such information may be disclosed to the Recipient Party including, without limiting the aforegoing, whether orally, visually or by reason of inspection of documentation or other matter;
17.12.2 acknowledge that the aforesaid information would not have been made available to the Recipient Party but for this undertaking;
17.12.3 agree not
17.12.3.1 to disclose such information to any person whomsoever other than the Recipient Party's employees (which shall include any of its directors), agents and/or contractors, on the basis that such information shall, notwithstanding the disclosure thereof as aforesaid, be maintained confidential by such employees, agents or contractors on exactly the same terms and conditions as set out herein; and
17.12.3.2 directly or indirectly to use for their benefit or the benefit of any other person such information unless any part of such information is or becomes public knowledge and in the public domain by reason of becoming public property other than through an act or omission on the part of the Recipient Party or the employees, agents and/or contractors contemplated in clause 18.11.3.1;
17.12.3.3 make any public disclosures or announcements of any of the matters dealt with in SODESIGNS’s Terms and/or any agreement entered into between the parties without the prior written consent of the other parties;
17.12.4 agree to return to the Disclosing Party, unless it otherwise agrees in writing, all copies of any documents which the Recipient Party may have obtained from as well as all notes or copies of documents concerning it which the Recipient Party may have prepared or which the Recipient Party may obtain as a result of information being made available to it as contemplated herein.
17.13 Dispute Resolution
Without derogating from any party’s other rights, between the parties to any agreement entered into by SODESIGNS (including SODESIGNS), the parties shall endeavour to settle amicably
17.13.1 any matter arising out of; or
17.13.2 the interpretation of; or
17.13.3 the termination of; or
17.13.4 any matter arising out of the termination of such agreement and any party may send any other party a written invitation to enter into non binding mediation in accordance with the rules of the Arbitration Foundation of Southern Africa in an endeavour to resolve any such dispute.
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