ACS PROMOTIONS (PTY) LTD – STANDARD TERMS AND CONDITIONS OF THE COMPANY

1. DEFINITIONS
   • “The Company” means ACS Promotions (Pty) Ltd.
   • “The Customer” means any person or entity purchasing or receiving any goods from the Company whether paid for or not.
   • “The Goods” shall mean any products marketed or sold by the Company to a Customer.
   • “The Service/s” means any services (whether charged for or not, and) agreed, in writing, to be provided by the Company to or for the Customer.
2. PRICE
   • The price of the goods shall be the price stated on the Company website, quotation, order form, invoices and/or any other Company forms, price lists or stationery plus Value Added Tax.
   • Prices are subject to change without prior notification and prices ruling at the time of dispatch of any goods shall apply.
   • The Company reserves the right at its sole discretion to provide alternative goods at the prevailing prices to those ordered by the Customer should such ordered goods be suspended, replaced or its manufacture terminated for any reason.
   • All quotations provided by the Company to the Customer will remain valid for a period of 7 calendar days from the date of the quotation or until the date of issue of a new Company price list, whichever occurs first.
   • All quotations are subject to the availability of the goods or services and subject to correction of errors by the Company and all prices quoted are subject to review and increase at the Company’s sole discretion in the event of any market increases in, inter alia, the cost price of goods, transport costs, the cost of fuel and currency fluctuations etc.
   • If the Customer disputes the amount of increase, the amount of the increase may be certified by a manager and/or director of the Company, whose appointment need not be proved and which certificate shall be final and binding on the Customer.
   • The Customer hereby confirms that the goods or services reflected on the Tax Invoice issued duly represent the goods or services ordered by the Customer and at the prices agreed to by the Customer and, where delivery/performance has already taken place, that the goods or services were inspected by the Customer and that the Customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.
   • Notwithstanding the above, all orders or agreed variations to orders, in writing, shall be binding on the Customer and subject to these standard conditions of agreement and may not be cancelled unless agreed to in writing by the Company.If the Company does agree to such cancellation and in writing then such cancelled order shall incur a minimum charge equal to 25% of the total order value plus Value Added Tax as an administration fee.
   • The Company shall be entitled in its sole discretion to split the delivery/ performance of the goods or services ordered in the quantities and on the dates it decides in its sole discretion.
   • The Company shall be entitled to invoice each delivery/performance actually made separately and whether the entire intended contract has been performed or not.
   • Any delivery note, waybill, receipt or job card (copy or original) signed by the Customer (or any representative of the Customer) or a third party engaged to transport the goods and held by Company shall be conclusive proof that delivery was made to the Customer.
3. PAYMENT
   • All orders are Cash On Delivery or EFT unless agreed otherwise in writing.
   • The Customer shall not be entitled to any rebates and/or discounts unless a director of the Company shall have agreed to such rebates and/or discounts in writing.
   • The Customer shall not be entitled to set off any monies due to it by the Company, against any amounts owing by it to the Company.
4. ORDERS
   • All orders, including oral orders, shall be deemed to be offers to purchase made by the Customer on the Company, and the Customer shall provide the Company with an order number when placing any such order with the Company.Absent an order number provided by the Customer, the Company shall be entitled but not obliged to accept or reject any such order at its sole election.
   • The order shall be subject to confirmation and acceptance by the Company and such acceptance shall be confirmed in writing by the Company.
   • Orders made by the Customer and accepted by the Company are binding on the Customer and may not be varied or cancelled by the Customer, except as provided for in 2.8 above.
   • The Customer acknowledges that it does not rely on any representations made by the Company in regard to the goods and services or any of its qualities leading up to this agreement other than those contained in this agreement. All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished by the Company in respect of the goods or services orally or in writing will not form part of the agreement in any way unless agreed to in writing by the Company.The Company makes no warranty in and to any goods or services unless specifically contained in this agreement.
   • The Customer agrees that neither the Company nor any of its Directors, Employees, Agents or Consultants will be liable for any negligent or innocent misrepresentations made to the Customer or for any loss or damage suffered by the Customer from any cause or complaint of whatsoever nature and the Customer indemnifies the Company from such claims and those of third parties in full.
   • It is the sole responsibility or the Customer to determine that the goods or services ordered are suitable for the purposes of intended use.The Company shall bear no responsibility whatsoever in this regard.
   • The Customer agrees to pay all costs resulting from any acts or omissions of the Customer including suspension of work, modification of requirements, failure or delay in giving particular instructions required to enable work to proceed on schedule or requirements that work be completed earlier than agreed.
   • The risk of damage to, destruction or theft of goods shall pass to the Customer on acceptance of any order placed in terms of this agreement and the Customer undertakes to comprehensively insure the goods from date of order. The Company may recover insurance premiums from the Customer for such uninsured goods if the Company elects to cover the goods after the Customer has failed to do so as required herein.
5. DELIVERY
   • The Company shall have the right to refuse to accept any new orders and/or suspend deliveries in respect of existing orders if any amounts due by the Customer remain unpaid.
   • Delivery and performance times quoted are merely estimates and are not binding on the Company at all. Whilst every effort will be made to despatch goods timeously, the Company does not guarantee despatch on any specific date and shall not be liable for any loss or damages for failure to effect delivery/despatch timeously and for any reason whether within or beyond the Company’s control and including but not limited to inability to secure labour, power, materials, equipment, supplies or by reason of/or an Act of God, war, civil disturbance, riots, emergency, strike, lockout or other labour disputes, fire, flood, drought, load shedding, suspended supply of any services governmental or otherwise, disease or virus or any prevailing legislation. The Customer shall not be entitled to cancel any order in the event of there being a delay in the delivery thereof, and the Customer expressly acknowledges that time shall not be of the essence in the Company executing any orders notwithstanding anything to the contrary contained in any order placed by the Customer on the Company.
   • If the Company agrees to engage a third party to transport the goods, the Company is hereby authorised to engage a third party on the Customer’s behalf and on those terms deemed appropriate by the Company.
   • The Customer indemnifies the Company against any claims that may arise from such arrangement as referred to in clause 5.3 made against the Company by the Customer or any other party. The Customer bears all risk in and to such goods from the time of confirmation of order by the Company and thereafter.
   • Delivery of the goods or services to the Customer shall take place at the place of business of the Company.
   • A carrier engaged by the Customer, or on behalf of the Customer by the Company, shall be deemed to be the agent of the Customer and the risk in the goods shall pass to the Customer upon collection or despatch of the goods from the place of manufacture of the goods or from any premises authorised by the Company. The signature of any employee of the carrier on the Company’s invoice or delivery note, shall be deemed to be proof of delivery to the carrier and thereby to the Customer.
   • Where the Company is requested by the Customer to withhold or postpone delivery and in the event that the Company agrees to do so, the Customer shall pay for the monthly costs of storage, demurrage, interest, insurance, or any other charges occasioned by the postponement of delivery and immediately on demand therefore.
6. NEGOTIABLE INSTRUMENTS
   • No Cheque payments are accepted unless agreed to in writing by the Company and in the event of payment by cheque no goods shall be released until at least 14 calendar days after the date of deposit of such cheque and full clearance thereof.
7. REPAIR
   • If relevant, repair times and repair costs given to a Customer are merely estimates and are not binding on the Company. Whilst every effort will be made to repair goods timeously, the Company does not guarantee repair on any specific date and shall not be liable for any damages for failure to effect repairs timeously and whether such failure is as a result of any reason beyond the Company’s control, including but not limited to inability to securelabour, power, materials, equipment of supplies or by reason or an Act of God, war, civil disturbance, riots, emergency, strike, lockout or other labour disputes, fire, flood, drought, load shedding, suspended supply of any services governmental or otherwise, disease or virus or any prevailing legislation.
   • Any item or goods handed in for repair by a Customer or its agent, may be sold by the Company to defray the cost of such repairs if the item remains uncollected within 30 calendar days of the repairs being completed.
8. OWNERSHIP AND RISK
   • Notwithstanding that all risk in and to all goods sold by the Company to the Customer shall pass on delivery (as defined hereinbefore), ownership in all goods sold and delivered shall remain fully vested in the Company unless and until the purchase price has been paid in full for the goods in question.
   • The Customer shall fully insure the goods purchased from the Company against loss or damage, until the full purchase price has been paid by the Customer for such goods. Pending payment to the Company for goods purchased, all benefits in terms of the insurance policy relating to the insurance of such goods are hereby ceded to the Company.
9. RETURNABLE GOODS
   • If agreed beforehand in writing, any goods taken on an approval basis by the Customer are deemed sold if not returned within 3 (three) calendar days of issue and in the original condition, in the original packaging and with all accessories and manuals intact.
   • The Company will deduct a restocking fee for goods returned at a minimum cost to the Customer of R500.00 excl VAT unless agreed otherwise in writing with Management.
   • Stock can only be returned to the Company once a Company issued Goods Returned Note (GRN) document has been sent to the Customer. The GRN must accompany the stock when returned to the Company. Failure to provide the GRN with the return of the goods will result in the Company not being able to receipt the stock back.
   • The Customer acknowledges and shall respect all intellectual property, copyrights, patents and trademarks belonging to the Company and all of its suppliers, agents and distributors and the Customer undertakes that it shall not duplicate, copy or infringe any such intellectual property and that each infringement attempt shall immediately render the Customer liable for all of the Company’s (or any other protected parties) damages both direct and indirect.
   • The Customer hereby indemnifies the Company against any claims, costs and expenses arising out of the infringement of copyright, patent, trade mark or design supplied by the Customer to the Company and vice versa.
10. WARRANTIES AND INDEMNITIES
    • Subject to the provisions of the Consumer Protection Act 68 of 2008, where applicable, new goods are guaranteed according to the Manufacturer’s product specific warranties only and all other guarantees including common law guarantees are hereby specifically excluded; and
    • Services are guaranteed according to the Manufacturer’s support guarantee if any; and
    • Liability under Clauses 10.1 and 10.2 is restricted to the cost of repair or replacement of faulty goods or services or granting of a credit at the sole discretion of the Company and never any more.
    • No claim under this Agreement shall arise unless the Customer has, within 3 days of the alleged breach or defect occurring, given the Company a period of 30 days’ written notice by prepaid registered post to rectify any defect or breach of the Agreement.
    • To be valid, claims must be supported by the original Tax Invoice.
    • The Customer shall return any defective goods to the premises of the Company at the Customer’s own cost and packed in the original or suitable packaging and all risks for the duration of repair and during transport, shall remain vested solely with the Customer.
    • All guarantees are immediately null and void should any goods be tampered with or should any seals on goods be broken by anyone other than the Company, or should the goods be operated or stored outside the Manufacturer’s specifications or recommendations.
    • Under no circumstances shall The Company be liable for any loss, damage and consequential damages or for any delictual liability of any nature whatsoever.
    • Under no circumstances shall the Company be liable for any damage arising from any use, misuse, abuse or neglect of the goods or services and whether by the Customer or its customer or staff.The Customer full indemnifies the Company and its Directors, Employees and Shareholders in this regard and holds them free and harmless from any costs or claims.
    • Where the Customer purchases Denatured Alcohol or related products, the Customer acknowledges and agrees that it will solely be responsible for the transport, storage and use of such Products and acknowledges having been warned that such Products can be extremely flammable, dangerous and poisonous (could cause death) if consumed. The Customer undertakes to do all things necessary to warn Consumers and staff of these facts and to ensure that its staff are not exposed to any harm.
11. LEGAL PROCEEDINGS
    • Regardless of the place of conclusion, execution, performance or breach under this contract or domicile of the Customer, this agreement and all modifications and amendments hereof, shall be governed by and decided upon and construed under and in accordance with the laws of the Republic of South Africa.
    • The Company shall, at its option and notwithstanding that the amount of its claim exceeds the jurisdiction of the Magistrate’s Court, be entitled to institute action out of such Court otherwise having Jurisdiction.
    • In the event of the Company instituting legal proceedings against the Customer for breach of its obligations in terms of these terms and conditions, or for damages suffered by the Company pursuant to such breach, then the Customer shall be liable for all legal costs incurred by the Company on the attorney and own client scale, including collection charges and tracing agents’ fees.
    • A certificate under the hand of any director or manager of the Company (whose authority need not be proved), in respect of any indebtedness of the Customer to the Company or in respect of any other fact, including without limiting the generality of the aforegoing, the fact that such goods were sold and delivered, shall be prima facie evidence of the Customer’s indebtedness to the Company and prima facie evidence of such other fact and prima facie evidence of the delivery of the goods.
    • The Customer’s physical address referred to in any quotation, order or invoice shall be its domicilium citandi et executandi (chosen address for service of legal notices and documents) for all purposes in terms of this application for credit facilities.
12. CESSION
    • The Customer shall not be entitled to cede any of its rights nor delegate any of its obligations in these terms and conditions to a third party.
    • The Company shall at any time in its sole discretion be entitled to cede all its rights in terms of these terms and conditions to any third party without prior notice to the Customer who hereby consents thereto.
13. BREACH
    • The Customer agrees that if an invoice is not settled in full:
      • against order; or
      • within the period agreed to in writing by the Company, the Company is:
        • entitled to immediately institute a recovery (of debt and goods) action against the Customer at the sole expense of the Customer; or
        • to cancel the order and take possession of any goods delivered to the Customer and claim damages incidental thereto.
    • These remedies are without prejudice to any other right the Company may be entitled to in terms of these terms and conditions or in law. The Company reserves its right to stop supply immediately on cancellation, for non-payment or any other reason in the discretion of the Company.
    • The Customer irrevocably authorises the Company to enter its premises to repossess any goods delivered but not paid for and indemnifies the Company completely against any damage whatsoever relating to the removal of repossessed goods.
    • In the event of cancellation, the Company is entitled not to produce any unmade balance of a contract and to recover any loss sustained thereby from the Customer.
    • The Customer is not entitled to sell or dispose of any goods unpaid for without the prior written consent of the Company. The Customer shall not allow the goods to become encumbered in any manner prior to the full payment thereof and shall advise third parties of the rights of the Company in the goods and in particular the Landlord of the Customer or of any premises where the goods are being stored or installed.
    • If any goods supplied to the Customer are of a generic nature and have become the property of the Customer by operation of law (confusio or cornmixtio) the Customer shall be obliged on notice or cancellation of the agreement to retransfer the same quantity of goods in ownership to the Company.
    • The Customer agrees to accept any quantity that does not exceed or fall short of the quantity ordered by no more than 10% as good and complete performance and may request the Customer to pay only the proportionate contract price for the actual quantity dispatched which request will not be unreasonably withheld.
14. NOTICES
    • Any document shall be deemed to be duly presented to and accepted by the Customer:
      • within three days of pre-paid registered mail to any of the Customer’s business or postal addresses; or
      • within 24 hours of being emailed to any of the Customer’s email addresses or any director, members or owner’s email address; or
      • on being delivered by hand to any premises of the Customer or any director, member or owner of the Customer; or
15. GENERAL
    • The Customer hereby consents to the collection, processing, storage and use by the Company of all personal information that it has provided to the Company for establishing its credit rating and to the Company disclosing such information to credit control companies, banks and other institutions involved in rating credit and for marketing of Products to the Customer from time to time. The Customer agrees that the Company will not be held liable for the good faith disclosure of any of this information to such a third party and that no further specific consent need to be obtained for the transfer of such information to a specific third party.
    • The Customer agrees to the then standard prevailing rates of the Company for any goods or services rendered, which rates are available on request.
    • The invalidity of any part of this Agreement shall not affect the validity of any other part if such part is capable of being severed from the rest of this agreement.
    • Any order is subject to cancellation by the Company due to Acts of God from any cause beyond the control of the Company, including (without restricting this clause to these instances): inability to secure labour, power, water, materials or supplies, or by reason of an act of God, war, civil disturbance, riot, state of emergency or disaster management, strike, lockout, or other labour disputes, fire, flood, drought, disease, virus or legislation.
    • Any order is subject to cancellation by the Company if the Customer breaches any provision of these terms and conditions or makes any attempt to compromise with its creditors, is placed in provisional or final liquidation or sequestration, de-registration, business rescue or if any judgment is recorded against the Customer or any of its principals and is not rescinded within 30 business days of the grant thereof.
    • The Customer agrees that the Company will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clauses 15.4 and 15.5 occur.
    • No amendment to, variation of, consensual cancellation of any of the terms and conditions of these terms and conditions and any subsequent written agreement for the supply of any goods or services shall be of any force or effect, unless reduced to writing, signed by the Customer and by a Director of the Company.
    • No relaxation or indulgence which the Company may give at any time in regard to the carrying out of the Customer’s obligations in terms thereof shall prejudice or be deemed to be a waiver of any of the Company’s rights in terms hereof, or the Company’s rights to insist on strict compliance therewith at any time, or from time to time in the future.
    • The Customer expressly acknowledges that no warranties or representations have been made by the Company to it except as contained in these terms and conditions and on an arm’s length basis, and no inducements have been offered by the Company to it to do business with the Company.
    • The headings in this document are inserted for convenience and shall not be taken into account for the purpose of interpreting this document.
    • Each of the terms and conditions herein shall be separate and divisible and if any such term or condition becomes unenforceable for any reason whatsoever, then that term or condition shall be severable and shall not affect the validity of any of the other terms and conditions hereof which shall remain of full force and effect.
    • The singular shall include the plural, any gender includes the other genders, natural persons includes juristic and artificial persons (including trusts) and vice versa.
    • This agreement will govern all future contractual relationships between the parties and is applicable to all existing debts between the parties. This agreement is final and binding and is not subject to any suspensive or resolutive conditions. Any conflicting condition stipulated by the Customer is expressly excluded from the operation of this agreement.
    • The terms of this agreement supersede all previous conditions of agreement without prejudice to any securities or guarantees held by the Company which shall remain valid and enforceable until recorded otherwise in writing by the Company.
    • These terms apply to all employees, directors, shareholders, contractors, consultants, advisors and sub-contractors of the Company.
    • No orders shall be accepted by the Company unless confirmed in writing by the Company.

Changes to these terms and conditions will be made from time to time and all updates will be available on the Company’s website which the Customer must regularly visit to stay updated. 

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