TERMS AND CONDITIONS ("T&C's")

 [Please make sure that you have read and understood these T&Cs and raised any queries you may have before agreeing to be bound by them.]

  1. DEFINITIONS
    • Agreement” means these T&Cs and the Quote;
    • Client” means the client to whom the Quote is addressed, including its successors-in-title;
    • Intellectual Property Rights” means the copyright in any work in terms of the Copyright Act, No. 98 of 1978, and includes without limitation the right to reproduce that work, the rights in respect of a trade mark conferred by the Trade Marks Act, No. 194 of 1993, the rights in respect of a design conferred by the Designs Act, No. 195 of 1993, and the rights in respect of a patent conferred by the Patents Act, No. 57 of 1978 including any applications for the aforegoing and any names, licenses, know how, trade secrets and data associated with the aforegoing;
    • the Guarantor” means, where the Client is not a natural person, the person who signs/accepts/is deemed to have accepted a Quote on behalf of the Client;
    • Order” is as defined in clause 1;
    • “the Parties” means the Supplier, the Client, and where the Client is not a natural person, the Guarantor;
    • “Product” means all goods or services recorded on the Quote;
    • the Quote” means a quote for Products which is delivered by the Supplier to the Client;
    • the Supplier” means Xtreme Outdoor Group (Pty) Ltd, with registration number 2018/532746/07;
    • Website” means xog.co.za.
  1. EFFECTIVE DATE & ACCEPTANCE OF T&CS
    • These T&Cs record the terms and conditions that apply to the sale of Products by the Supplier to any Client that places an order for Products.
    • These T&Cs (or any amendment or replacement version of them) shall be effective from the date of delivery to the Client of the Quote (“Effective Date“).
    • These T&Cs shall prevail over any conflicts in any other documents from the Effective Date.
    • The acceptance of any order recorded in a Quote by the Supplier is conditional upon the Client’s complete and unconditional acceptance of these T&Cs. The Client shall be deemed to have accepted these T&Cs and any other terms and conditions in the Quote by the earliest of payment of the deposit or accepting the Quote in writing to the Supplier (which may by recording acceptance in the body of an email, or by returning the signed Quote to the Supplier by email). Until such acceptance occurs, no Order shall arise and the Supplier shall not begin the work recorded in that Quote.
  1. QUOTATIONS
    • All Quotes by the Supplier constitute a legal offer to the Client. Where the Quote is accepted by the Client as set out in clause 4 above, it shall constitute an “Order ” being a legally binding agreement between the Parties.
    • All prices in a Quote are valid for 7 (seven) days from the date of the Quote or until the next price increase from an external supplier to the Supplier.
    • No cancellation shall be allowed or accepted once a Quote has been accepted.
    • All deposits paid are strictly non – refundable.
  1. TERMS OF PAYMENT
    • The costs for the Products and the required dates for payment to the Supplier, will be recorded in the Order.
    • Client shall pay all amounts to the Supplier without deduction or set-off, into the Supplier’s bank account that is recorded on the relevant Quote.
    • If payment is not made by the due date, interest shall be charged thereon at First National Bank’s prevailing prime interest rate plus 2% or the maximum permissible rate as published in terms of the Regulations of the National Credit Act No 34 of 2005 as amended, whichever is higher, per annum. Such interest shall be payable, calculated from the day following the date the payment is due until the date of its full settlement.
    • Where a Client has failed or refused to pay as set out in clause 3 above, further orders for Products, and further work under existing Orders, will be suspended until the account is fully paid together with interest thereon. Accordingly, the Supplier reserves the right (without prejudice to any right to damages or other remedy available) to withhold further Delivery to the Client until payment in full, including any interest due, is made.
  1. CHANGE TO ORDERS
    • If the Client wants to make a change to an Order, the change will not be valid or accepted by the Supplier until:
      • the Supplier’s written correspondence to the Client recording the change is accepted by the Client by written reply (which can be by email);or
      • where a new Quote was sent to the Client by the Supplier for this change, the Client has delivered a signed copy of the Quote to the Supplier.
  • NO ADDITIONS OR ALTERATIONS TO THE CARAVAN CAN BE ACCOMODATED ONCE IT HAS RETURNED FROM SPRAY PAINTING.
  1. DELIVERY
    • Delivery of the Product is affected or deemed to have been affected to the Client once the Client takes possession of the Product (“Delivery“).
    • Delivery of the Product will only be affected by the Supplier once full and final payment has been received.
    • The address for Delivery shall be the Supplier’s address as stated on the Quote unless otherwise agreed between the Parties in writing.
    • Date(s) of Delivery are provided for information only. Whilst every effort is made to ensure due performance the Supplier cannot accept responsibility for damages or consequential loss or damage arising out of delay or failure to Deliver by a specified date.
    • Late Delivery for any reason whatsoever, shall not constitute grounds for withholding sums, or making any payment due and payable, or to refuse Delivery, or to cancel the Order, or repudiate this Agreement – by the Client.
    • In addition to the provisions of 4.4 above, where a Client fails to take Delivery of the Product for a period exceeding 14 (fourteen) days as reckoned from the time the Client was first notified of the Product’s readiness for Delivery and for any reason whatsoever, the Supplier will be entitled at its sole discretion to obtain payment of the balance of the agreed purchase price of the Products notwithstanding Delivery not yet being made, together with any resultant costs including without limitation the cost for storage and insurance, attempted Delivery or re-Delivery thereof.
  1. RESERVATION OF OWNERSHIP

The Products shall remain the property of the Supplier until full payment has been received (each Order being considered as a whole) or until prior resale, in which case the beneficial and legal entitlement of the Supplier shall attach to the proceeds of the resale or to the claim on those proceeds.

  1. CONDITIONS OF SALE
    All Products are sold to the Client on the following conditions, and the Supplier does not accept any responsibility arising from the Client’s failure to follow this provision:
    • Under no circumstances except in respect of death or personal injury caused by the Supplier’s negligence does the Supplier accept liability for consequential loss, damage, costs or expenses, howsoever arising and any liability for any such consequential loss damage is hereby specifically excluded. Should a claim be made the Supplier’s liability is limited to the value of the Order placed by the .
    • Since the Products are made to special order, the Consumer Protection Act No. 68 of 2008 as amended does not apply and no cancellation (regardless of when) can be accepted once an Order has been accepted or deposit paid. Accordingly, the Client shall be liable for the full value of the Order.
  1. PRODUCT WARRANTY

The Product Warranty available at ___________ applies to all Products.

  1. WARRANTY ON CAPACITY
    Each Party warrants that:
    • It has the legal capacity and has taken all necessary corporate action required (where applicable) to empower and authorise it to enter into and implement this Agreement on the terms and conditions herein set out.
    • This Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms.
  1. INTELLECTUAL PROPERTY
    • The Supplier agrees to comply with all laws applicable to any Intellectual Property Rights in respect of any data, files and/or information accessed, retrieved or stored by the Supplier through its use of any of the Products.
    • The Supplier (or its third party licensors) will wholly and exclusively retain all Intellectual Property Rights related to the provision of any of the Products in terms of these T&Cs.
  1. FORCE MAJEURE
    • No Party shall be liable for a failure to perform any of its obligations in terms of this Agreement insofar as it is able to prove that:
      • such failure was due to an impediment beyond its reasonable control;
      • it could not reasonably have been expected to have taken such impediment and its effects upon such Party’s ability to perform into account at the time of conclusion of this Agreement; and
      • it could not reasonably have avoided or overcome the impediment or at least its effects.
    • In the event that the impediment continues for a period of more than 3 (three) consecutive months, then either Party shall be entitled to cancel this Agreement with immediate effect upon giving the other one of them written notice to that effect.
  1. LIEN

The Supplier shall be entitled to exercise a lien over any products manufactured and/or purchased for the Client, including but not limited to all documents, workings, products and/or completed works and/or any other document in the Supplier’s possession relative to the Client’s instruction, as further security for the discharge of the Client’s obligations in terms of this Agreement.

  1. BREACH

In the event of a Party failing to make a payment in full and on time, or failing to meet a material obligation under this Agreement, the innocent Party shall be entitled, provided that the defaulting Party is given 10 days written notice to remedy the default and fails to do so, to cancel this Agreement or demand specific performance of the other Party’s obligations together with any damages suffered by the innocent Party as a result of such default, and if the Supplier is the innocent Party and the Client has  failed to make a payment in full and on time , the Supplier may also:

  • repossess the Products (if Client has any of them in its possession);
  • Use or sell all or any of the Products; and
  • enter any premises of the Client to remove the Products.
  1. DISPUTE RESOLUTION AND ARBITRATION
    • Notwithstanding anything to the contrary herein, in the event of any dispute arising between the Parties in respect of any matter arising out of this Agreement, then the Parties undertake, in good faith, to attempt the resolution of the dispute first through negotiation between themselves.
    • If the dispute remains unresolved within 10 days of the dispute having been raised in writing, the dispute shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa (“AFSA”) by an arbitrator appointed by AFSA. Such arbitration shall take place within the city of Cape Town, South Africa.
    • Nothing contained herein shall preclude any of the Parties from approaching a court of competent jurisdiction for an interdict or for relief on an urgent basis.
  1. DOMICILIUM AND NOTICES

The Parties choose the physical or email addresses identified in the Quote (which for the Client will include the email address to which the Quote was sent by the Supplier) at which documents in legal proceedings in connection with this Agreement may be served (i.e. their domicilia citandi et executandi) and at which any written notice in connection with this Agreement may be addressed.

  1. WHOLE AGREEMENT
    • This Agreement makes up the whole agreement between the Parties. Neither Party shall be obliged to comply with any express or implied term, condition, undertaking, representation, warranty, or promise not recorded in this Agreement. This Agreement replaces any arrangement or understanding held by the Parties before this Agreement was accepted by the Supplier.
    • No amendment, addition or consensual cancellation of the Agreement will be binding unless it is recorded in writing and signed by the Parties.

  1. GENERAL
    • Cession And Assignment: The Client may not sell, cede, assign, delegate or in any other way alienate or dispose of any or all of the Client’s rights and obligations under and in terms of this Agreement without the prior written approval of the Supplier. The Supplier shall be entitled to sell, cede, assign, delegate, alienate, dispose or transfer any or all of its rights and obligations under and in terms of this Agreement to any of its affiliates or to any third party without the Client’s consent and without notice to the Client, provided that the Client is not unduly prejudiced as a result.
    • Parties’ Relationship: Nothing contained in this Agreement shall be deemed to constitute a relationship of partnership and/or a joint venture between the Client and the Supplier.
    • Confidentiality: All matters relating to the Agreement shall be treated by the Parties as confidential and no such matters shall be disclosed to any third party without the prior agreement in writing by both Parties (subject to the proviso that confidential information does not include information which is publicly known, or which is available from or disclosed by a third party not bound by any duty of confidentiality under this Agreement).
    • Relaxation: No Party shall lose any of its rights under this Agreement if it does not immediately and in every instance insist on them.
    • Severability: The Parties acknowledge that each clause of this Agreement is separate. If any clause of this Agreement is or becomes illegal, invalid or unenforceable for any reason or in any jurisdiction, it will be treated as of it had not been written.  This does not:
      • make the rest of the Agreement illegal, invalid or unenforceable
      • affect the legality, validity or enforceability of the clause in another jurisdiction.
    • Applicable Law :This Agreement shall be governed, interpreted and implemented in accordance with the laws of South Africa.
    • Jurisdiction of South African Courts: The Parties consent to all proceedings instituted in connection with this Agreement being instituted in the Magistrate’s Court in terms of section 45 of the Magistrate’s Court Act of 1944 (as amended).
    • Costs: If the Supplier brings legal proceedings against the Client (and/or the Guarantor) to enforce its rights under the Agreement, the Client (and/or the Guarantor) shall be responsible to pay all costs that the Supplier incurs in any legal proceedings and/or arbitration proceedings against the Client, (including for mediation and/or arbitration proceedings) on a scale as between attorney and client plus VAT.
    • Privacy: The Supplier will deal with the Client’s personal information in compliance with all relevant laws. By providing the Supplier with any information the Client will be authorising the Supplier to:
      • transfer its personal information to another country, if such country’s data protection laws are substantially similar to the data protection offered in the Republic of South Africa;
      • process its personal information subject to compliance with all relevant laws.
    • The Client’s representative understands that the terms in bold have important legal consequences.
    • The Client’s representative confirms that he/she has read and understood all the terms and conditions in this Agreement and raised any questions which require clarification before binding the Client to the Agreement.

+27(0) 21 981 2992

 

info@xog.co.za

 

42 Stella Rd l Montague Gardens l Cape Town l 7441

 

Copyright © 2021 Xtreme Outdoor

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