SENSORY FX’S GENERAL CONDITIONS OF SUPPLY

SENSORYFX AND THE APPLICANT AGREE THAT SENSORYFX WILL SUPPLY THE GOODS TO THE APPLICANT AT THE CUSTOMARY PRICES DETERMINED FROM TIME TO TIME BY SENSORYFX, ON THE FOLLOWING PROVISIONS, TERMS AND CONDITIONS (“TERMS AND CONDITIONS”).

PLEASE READ THE FOLLOWING TERMS CAREFULLY AS THE SALE OF GOODS WILL BE SUBJECT TO THESE TERMS.

IMPORANT NOTICE

  1. These Terms and Conditions apply to Applicants who may be consumers for purposes of the Consumer Protection Act, 68 of 2008 (the “CPA“) and to Applicants who may not the consumers for the purposes of the CPA.
  2. THESE TERMS AND CONDITIONS CONTAIN PROVISIONS THAT APPEAR IN SIMILAR TEXT AND STYLE TO THIS CLAUSE AND WHICH:
    2.2.1 MAY LIMIT THE RISK OR LIABILITY OF SENSORYFX OR A THIRD PARTY; AND/OR2.2.2  MAY CREATE RISK OR LIABILITY FOR THE APPLICANT; AND/OR
    2.2.3 MAY COMPEL THE APPLICANT TO INDEMNIFY SENSORYFX OR A THIRD PARTY; AND/OR
    2.2.4 SERVES AS AN ACKNOWLEDGEMENT, BY THE APPLICANT, OF A FACT.
  3. Your attention as a consumer in terms of the CPA is specifically drawn to these terms and conditions because they are important and should be carefully noted.
  4. Do not accept these Terms and Conditions if you do not agree with or understand the meaning of it or any portion thereof, it is untrue and/or you have not been given enough time to read and comprehend the meaning of the terms and conditions or any other provision, term or condition that may be contained in these Terms and Conditions. If there is any provision in these Terms and Conditions that you do not understand, it is your responsibility to ask SensoryFX to explain it to you before you accept the Terms and Conditions.
  5. These Terms and Conditions can only be changed, or other terms agreed, in written correspondence signed by a director or other senior officer of SensoryFX. No subsequent behaviour of SensoryFX, in accepting these Terms and Conditions from you with proposed amendments, can be taken to imply any acceptance by SensoryFX of those proposed amendments.
  6. Nothing in these Terms and Conditions is intended or must be understood to unlawfully restrict, limit or avoid any right or obligation, as the case may be, created for either you or SensoryFX in terms of the CPA.

DEFINITIONS

1.1 In this Agreement:

1.1.1 “Agreement” shall mean these terms and conditions and all annexures if applicable;

1.1.2 “Applicant” shall mean the party placing the Order and includes the Applicant’s successors and permitted assignees;

1.1.3 “CPA” shall mean the Consumer Protection Act 68 of 2008, as amended from time to time, read with the Consumer Protection Regulations 2011, promulgated thereunder;

1.1.4 “Companies Act” shall mean the Companies Act 71 of 2008, as amended from time to time, read with the Companies Regulations 2011, promulgated thereunder;

1.1.5 “Disclosing Purpose” shall mean the delivery of the Goods by SensoryFX to the Applicant and/or to comply with legal and regulatory requirements or when it is otherwise allowed by law;

1.1.6 “Goods” shall mean any product provided by SensoryFX indicated on any company forms, price lists, quotations, delivery notes, orders and invoices;

1.1.7 “Order” shall mean an order for Goods placed on SensoryFX by the Applicant;

1.1.8 “Party” shall mean any one of the parties to this Agreement. The term “Parties” shall have a corresponding meaning;

1.1.9 “Personal Information” shall mean name, surname, company name, company registration number, address, VAT number, telephone number, email address, contact person name and surname, credit history, banking details of the Applicant and such other information as may be required to deliver the Goods;

1.1.10 “Prime Rate” shall mean the publicly quoted nominal rate of interest per annum charged by ABSA Bank Limited (“the Bank”) from time to time on unsecured overdraft facilities to its most favoured corporate clients, as certified by any general manager of the Bank, whose authority or appointment it shall not be necessary to prove, calculated on a nominal annual compounded monthly basis in arrears; and

1.1.11 “SensoryFX” shall mean SENSORY FX (PTY) LIMITED, registration number 2010/016074/07, a private company duly registered in accordance with the laws of the Republic of South Africa, with its registered address at 154 Edward Ave, Hennopspark, Centurion, Gauteng, South Africa.

1.2 In this Agreement, unless the context otherwise requires:

1.2.1 if any provision in a definition is a substantive provision conferring rights or imposing obligations on a Party, notwithstanding that it is only in the interpretation clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement;

1.2.2 in this Agreement a Party includes a reference to that Party’s successors in title and assigns allowed at law;

1.2.3 any reference in this Agreement to:

1.2.3.1 “business hours” shall be construed as being the hours between 08h00 and 17h00 on any business day. Any reference to time shall be based upon South African Standard Time;

1.2.3.2 “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;

1.2.3.3 “law” means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law within the explicitly mentioned country;

1.2.3.4 “person” means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality; and

1.2.3.5 “writing” means legible writing and in English and includes any form of electronic communication contemplated in the Electronic Communications and Transactions Act, No 25 of 2002.

1.2.4 the words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it;

1.2.5 the words “shall” and “will” and “must” used in the context of any obligation or restriction imposed on a Party have the same meaning;

1.2.6 words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement;

1.2.7 unless otherwise provided, defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning;

1.2.8 a reference to any statutory enactment shall be construed as a reference to that enactment as at the commencement date of this Agreement and as amended or substituted from time to time;

1.2.9 unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day;

1.2.10 if the due date for performance of any obligation in terms of this Agreement is a day which is not a business day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately succeeding business day;

1.2.11 where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention;

1.2.12 the rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply;

1.2.13 the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement 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;

1.2.14 no provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a party to this Agreement;

1.2.15 any reference in this Agreement to “this agreement” or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document, as amended, varied, novated or supplemented from time to time; and

1.2.16 in this Agreement the words “clause” or “clauses” and “annexure” or “annexures” and “schedule” or “schedules” refer to clauses and annexures or schedules to this Agreement.

  1. AGREEMENT
    • The terms and conditions set out in this Agreement, together with any other standard terms and conditions of SensoryFX, shall govern the purchase of the Goods to the Applicant from SensoryFX to the entire exclusion of all other terms and conditions.
    • No terms and conditions endorsed on, delivered with or contained in the Applicant’s documentation provided to SensoryFX (“other terms”) will form part of this Agreement. THIS AGREEMENT CAN ONLY BE CHANGED, OR OTHER TERMS AGREED, IN WRITTEN CORRESPONDENCE SIGNED BY A DIRECTOR OR OTHER SENIOR OFFICER OF SENSORYFX. NO SUBSEQUENT BEHAVIOUR OF SENSORYFX, IN ACCEPTING THIS AGREEMENT FROM THE APPLICANT WITH PROPOSED AMENDMENTS, CAN BE TAKEN TO IMPLY ANY ACCEPTANCE BY SENSORYFX OF THOSE PROPOSED AMENDMENTS.
    • The Applicant, by accepting any quotation from SensoryFX, or placing any Order with SensoryFX, acknowledges that all Goods sold by SensoryFX to the Applicant shall be subject to and governed by the terms and conditions contained in this Agreement, together with any other standard terms and conditions of SensoryFX.
    • In the event of a conflict between the terms and conditions of this Agreement and any other terms, the terms and conditions of this Agreement shall prevail. Any conflict between the provisions of the various sections of this Agreement and any other standard terms and conditions of SensoryFX will be resolved in accordance with the following order of precedence (in descending order of priority) as follows:
      • in relation to conflicts pertaining to technical and / or financial issues and / or services and / or delivery issues specific to the Goods being provided, the order of precedence shall be: (a) the applicable standard terms and conditions of SensoryFX (including the schedules attached thereto, if any), and (b) this Agreement; and
      • in relation to all other conflicts, the order of precedence shall be (a) this Agreement, (b) the applicable standard terms and conditions of SensoryFX, and (c) the annexures/schedules to the foregoing documents in the same order of precedence attaching to the documents to which they are annexed.
  1. PRICE
    • The price of any Goods sold shall be at the price as per SensoryFX’s written quotation in respect of a specific Order, or in the absence of a written quote, shall be SensoryFX’s usual current price at the time of dispatch of the Goods from SensoryFX’s premises.
    • Any price letters distributed or advertisements placed by SensoryFX are for guideline purposes only and shall not be binding on SensoryFX. SensoryFX has the right, from time to time, for any reason and without notice to the Applicant, to change the price of any Goods.
    • Notwithstanding the placing of an Order by the Applicant and the acceptance thereof by SensoryFX, SensoryFX shall be at liberty to revise quotations or prices with or without notice to the Applicant, inter alia in the event of an increase in the cost of production of the Goods or currency fluctuations which occurs after the date of placing the Order.
  2. PAYMENT
    • The Applicant shall pay the amount due to SensoryFX in accordance with the agreed trading terms, into an account specified by SensoryFX to the Applicant in writing from time to time, free of deduction, demand, set-off, bank charges or commission. If no trading terms were agreed to the Applicant shall pay the full amount due to SensoryFX after an Order for such Goods has been accepted by SensoryFX before the manufacturing of such Goods by SensoryFx shall commence.
    • All amounts due to by the Applicant to SensoryFX shall be made directly to SensoryFX. No payment made to SensoryFX’s sales representatives, employees, agents or third parties shall be regarded as proper payment to SensoryFX until such time as the funds have been credited to the Applicant’s account as cleared funds.
    • No discount or rebate granted to the Applicant shall be binding on SensoryFX unless a manager or director of SensoryFX has agreed to such discount or rebate in writing. NO OTHER PERSON MAY GRANT A DISCOUNT OR REBATE ON BEHALF OF SENSORYFX.
    • Should the Applicant fail to make any payment, or any portion thereof, timeously and in full, SensoryFX shall be entitled at its sole discretion to withdraw or reverse any agreed discount or rebate; alternatively, to set-off the amount owing by the Applicant against any rebate, credit, allowance or payment (if any) due to the Applicant by SensoryFX.
    • SHOULD THE APPLICANT’S FINANCIAL POSITION BECOME UNSATISFACTORY TO SENSORYFX, SENSORYFX SHALL BE ENTITLED TO DEMAND PAYMENT FOR ANY CONSIGNMENT IN ADVANCE AND/OR TO DEMAND SATISFACTORY SECURITY FROM THE APPLICANT.
    • SensoryFX will allocate any payments received under this Agreement firstly to costs and fees incurred by SensoryFX, thereafter to arrear or penalty interest (if any), thereafter to interest and thereafter the balance (if any) to the principal debt due and / or owing to SensoryFX, provided that the longest outstanding principal debt due and/or owing shall be settled first.
    • IN ALL CASES WHERE THE APPLICANT USES A POSTAL BANKING, ELECTRONIC OR SIMILAR METHOD OR SERVICE TO EFFECT PAYMENT, SENSORYFX OF SUCH SHALL BE DEEMED TO BE THE AGENT OF THE APPLICANT.
    • UNLESS THE APPLICANT OBJECTS TO THE CORRECTNESS OF ANY ENTRY ON ANY STATEMENT, DELIVERY NOTE AND/OR INVOICE WITHIN 7 (SEVEN) DAYS OF THE DATE OF DISPATCH OF SUCH STATEMENT AND/OR INVOICE, THE APPLICANT SHALL BE DEEMED TO HAVE ACCEPTED THAT SUCH ENTRIES ARE CORRECT AND THAT IT DOES NOT DISPUTE SUCH ENTRIES.
    • Notwithstanding the timeous raising of a complaint or dispute of liability by the Applicant, the Applicant shall, under no circumstances whatsoever, be entitled to withhold payment in respect of the Goods delivered by SensoryFX, pending the resolution of such dispute or complaint.
    • Where the due date for payment falls on a Sunday or South African public holiday, then the amount shall be paid by the Applicant on the preceding business day.
  3. ORDERS
    • Orders for SensoryFX’s Goods shall be made in writing and directed to the address as may be nominated by SensoryFX from time to time.
    • ALL VERBAL ORDERS SHALL BE CAPABLE OF ACCEPTANCE BY SENSORYFX, BUT SENSORYFX SHALL NOT BE RESPONSIBLE FOR ANY ERRORS OR MISUNDERSTANDINGS OCCASIONED BY THE APPLICANT’S FAILURE TO REDUCE SUCH ORDERS TO WRITING.
    • An Order placed with SensoryFX by the Applicant shall constitute an irrevocable offer to purchase the Goods in question and shall be capable of acceptance by SensoryFX, at its sole discretion, which acceptance shall be evidenced by the delivery of the Goods, written acceptance and/or confirmation of the Order.
    • Before an Order is placed for Goods the Applicant may first request a quotation from SensoryFX for such Goods. SHOULD SENSORYFX SUBMIT A QUOTATION TO THE APPLICANT FOR THE SALE OF GOODS, SUCH QUOTATION AND THE AVAILABILITY OF QUOTED ITEMS AND PRICES ARE ONLY VALID FOR A PERIOD OF 7 (SEVEN) DAYS AFTER THE DATE OF EACH FORMAL LETTER OF CONTRACT ISSUED BY SENSORYFX TO THE APPLICANT AND ARE SUBJECT TO CHANGE AFTER THE AFOREMENTIONED 7 (SEVEN) DAY PERIOD.
    • Any acceptance by the Applicant after the aforementioned 7 (seven) day period shall constitute a counteroffer by the Applicant to SensoryFX.
    • Any price quoted by SensoryFX shall be subject to minimum purchases as stated in the quotation.
    • SensoryFX may require a deposit to be paid when an Order is placed, in such instance should the Applicant not take delivery and/or not make payment of the balance of the Order in accordance with the term and conditions of this Agreement, SensoryFX has the right to retain such deposit.
    • Some of the Goods sold by SensoryFX is sold in standard quantities only. Accordingly, should an Applicant request a quotation or place an Order for any quantity of Goods that is not a standard quantity, SensoryFX shall be entitled to submit a quotation for the nearest number of standard quantities of the Goods that is not less than the quantity of Goods ordered. If such quotation is accepted by the Applicant the resultant Order placed by the Applicant shall be for the supply of the quantity of the Goods specified in the quotation.
  4. DELIVERY OF GOODS
    • SensoryFX offers 2 (two) methods of delivery of the Goods to the Applicant, namely:
      • courier; or
      • self-collection.
    • SensoryFX’s delivery charges are subject to change at any time, without prior notice to the Applicant. The applicable delivery charges will be reflected on the quotation that SensoryFX will provide to the Applicant for the delivery of the Goods.
    • Time shall not be of the essence and delivery dates shall be treated as approximate only. Under no circumstances shall the Applicant be entitled to withdraw from or terminate an Order on account of any delay in delivery or have any claim of any nature whatsoever against SensoryFX arising from late delivery.
    • Where Goods are to be delivered via courier, SensoryFX will deliver the Goods to the Applicant as soon as reasonably possible.
    • SENSORYFX’S OBLIGATION TO DELIVER THE GOODS TO THE APPLICANT IS FULFILLED WHEN SENSORYFX DELIVERS THE GOODS TO THE PHYSICAL ADDRESS NOMINATED BY THE APPLICANT FOR DELIVERY OF THE ORDER. THE APPLICANT’S SIGNATURE OR THE SIGNATURE BY ANY OF ITS EMPLOYEES OR AGENTS (WHOSE AUTHORITY THE APPLICANT SHALL NOT BE ENTITLED TO DENY OR REPUDIATE) OF SENSORYFX’S OFFICIAL DELIVERY NOTE SHALL CONSTITUTE PRIMA FACIE PROOF OF DELIVERY OF THE GOODS. SENSORYFX IS NOT RESPONSIBLE FOR ANY LOSS OR UNAUTHORISED USE OF THE GOODS, AFTER IT HAS DELIVERED THE GOODS TO THE PHYSICAL ADDRESS NOMINATED BY THE APPLICANT.
    • SENSORYFX MAY BE REQUESTED TO STORE THE GOODS PURCHASED AND PAID FOR AT THE PREMISES OF SENSORYFX, IN WHICH EVENT THE APPLICANT SHALL BEAR THE RISK OF DAMAGE TO, DESTRUCTION OR THEFT OF THE GOODS SO STORED.
    • SENSORYFX SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER ARISING OUT OF OR ABOUT ANY DEFECT IN ANY GOODS UNLESS SENSORYFX HAS BEEN CALLED UPON AN APPLICANT IN WRITING TO RECTIFY THE DEFECT WITHIN SEVEN (7) DAYS OF DELIVERY OF THE GOODS. SENSORYFX SHALL ONLY BE OBLIGED TO RECTIFY SUCH DEFECTS IF NO PERSON NOT AUTHORIZED BY SENSORYFX HAS MODIFIED, ALTERED, OR ATTEMPTED TO REPAIR THE GOODS AND/OR THAT THE GOODS HAVE ONLY BEEN USED FOR THE PURPOSE FOR WHICH THEY WERE DESIGNED OR INTENDED.
    • The Applicant shall return such Goods to the premises of SensoryFX at the Applicant’s own cost and packed in the original packaging within 30 (thirty) days from the original date of delivery. SensoryFX shall be entitled to charge the Applicant a handling fee of 15% of the total amount of the invoice relating to such Goods. SensoryFX shall endeavour to replace such defective Goods or rectify the defect contained in the Goods, if capable of being remedied, within a period of 30 (thirty) days or such longer period as may be required by SensoryFX.
    • Please refer to SensoryFX’s Returns Policy for more information about returning Goods (and related refunds, replacements or repairs) which policy is incorporated into this Agreement by reference.
  5. OWNERSHIP AND RISK

OWNERSHIP IN ANY GOODS DELIVERED BY SENSORYFX TO THE APPLICANT SHALL REMAIN VESTED IN SENSORYFX UNTIL PAID FOR IN FULL, HOWEVER RISK IN AND TO THE GOODS WILL TRANSFER TO THE APPLICANT UPON DELIVERY TO THE APPLICANT, UNLESS OTHERWISE STATED IN THIS AGREEMENT.

  1. WARRANTIES, REPRESENTATIONS AND INDEMNITIES BY SENSORYFX
    • SENSORYFX, ITS EMPLOYEES AND/OR AGENTS GIVE NO WARRANTIES OR GUARANTEES, WHETHER EXPRESS, IMPLIED OR TACIT, TO THE APPLICANT OTHER THAN THOSE WHICH SENSORYFX IS OBLIGED TO GIVE IN LAW, SUCH AS:
      • THAT THE GOODS ARE REASONABLY SUITABLE FOR THE PURPOSE FOR WHICH THEY ARE GENERALLY INTENDED;
      • THAT THE GOODS ARE OF GOOD QUALITY AND IN GOOD WORKING ORDER;
      • THAT THE GOODS WILL BE USABLE AND DURABLE FOR A REASONABLE PERIOD OF TIME, HAVING REGARD TO THE USE TO WHICH THEY WOULD NORMALLY BE PUT AND TO ALL THE SURROUNDING CIRCUMSTANCES OF THEIR SUPPLY; AND
      • COMPLY WITH ANY APPLICABLE STANDARDS SET UNDER THE STANDARDS ACT NO. 29 OF 1993 OR ANY OTHER APPLICABLE PUBLIC REGULATION.
    • SENSORYFX, ITS EMPLOYEES AND/OR AGENTS SHALL NOT BE LIABLE (TO THE FULLEST EXTENT PERMISSIBLE BY LAW), WHETHER IN CONTRACT OR DELICT OR OTHERWISE, FOR ANY DEFECT IN THE GOODS DELIVERED, FOR ANY INJURY (UNLESS AS A RESULT OF GROSS NEGLIGENCE, WILFUL DEFAULT OR FRAUD BY SENSORYFX OR FOR ANY DAMAGE OR LOSS RESULTING FROM SUCH DEFECT OR ANY WORK DONE IN CONNECTION THEREWITH, WHETHER THROUGH THE NEGLIGENCE (EXCLUDING GROSS NEGLIGENCE) OR OTHERWISE OF SENSORYFX.
    • SENSORYFX, ITS EMPLOYEES AND/OR AGENTS SHALL NOT BE LIABLE (TO THE FULLEST EXTENT PERMISSIBLE IN LAW) FOR ANY LOSS OR DAMAGE OF WHATSOEVER NATURE SUSTAINED BY THE APPLICANT OR ANY OTHER PERSON, NOR SHALL SENSORYFX BE LIABLE FOR DELICTUAL, SPECIAL, DIRECT, INDIRECT, GENERAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING (BUT NOT LIMITED TO) LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS.
    • IN THE EVENT SENSORYFX, ITS EMPLOYEES AND/OR AGENTS IS FOUND TO BE LIABLE FOR DAMAGES IN TERMS OF THIS AGREEMENT, THE EXTENT OF SENSORYFX’S LIABILITY SHALL NOT EXCEED (TO THE EXTENT PERMISSIBLE IN LAW) THE VALUE OF THE GOODS SOLD AND DELIVERED OR AN AMOUNT OF R50 000.00 (FIFTY THOUSAND RAND) WHICHEVER IS THE LOWEST.
    • SensoryFX do not accept any responsibility whatsoever for the correctness of instructions which appear on the Goods not manufactured by SensoryFX.
  2. WARRANTIES, REPRESENTATIONS AND INDEMNITIES BY THE APPLICANT
    • The Applicant makes the representations and warranties set out in this clause as at the acceptance date of this Agreement and for the duration of this Agreement and acknowledges that SensoryFX has entered into this Agreement in reliance on these representations and warranties, each of which is material and a material representation inducing SensoryFX to enter into this Agreement.
    • The Applicant has the power to execute and deliver this Agreement and to perform all its obligations thereunder (including, without limitation, the payment of all amounts) and all corporate and other action required to authorise its execution and its performance of such obligations, have been duly taken.
    • The Applicant is not prohibited in terms of its constitutional documents, or otherwise, from entering into this Agreement or transactions contemplated by it to which it is a party.
    • All information (as supplemented from time to time) that has been or will hereafter be made available to SensoryFX by the Applicant or any of its representatives in connection with the transactions contemplated herein is and will at all times be complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements were or are made.
    • The Applicant agrees to supplement such information from time to time so that the same remains correct and acknowledges that SensoryFX is acting in reliance on the accuracy of information supplied to it without independent verification.
    • No legal suit, action, proceeding or process or any other steps have been taken or, to the best of the Applicant’s knowledge and belief, after having made all reasonable enquiries in this regard, threatened for the winding-up or liquidation (whether voluntary or involuntary, provisional or final) or de-registration of the Applicant or for the appointment of a liquidator or similar officer over the Applicant or over any assets of the Applicant.
    • The Applicant hereby warrants, represents and undertakes that:
      • the Applicant is not carrying on business recklessly, with gross negligence, with intent to defraud or fraudulent purposes;
      • the Applicant it is not carrying on business or trading under insolvent circumstances;
      • that no application to court for an administration order has been made in respect of the Applicant;
      • the Applicant will advise SensoryFX immediately of any facts or circumstances which cause or which are reasonably likely to cause any representation or warranty to be false or misleading in any material respect; and
      • the Applicant is in full compliance with all applicable laws, regulations and standard industry practices.
    • THE APPLICANT SHALL AT ALL TIMES WHETHER DURING OR AFTER TERMINATION OR EXPIRY OF THIS AGREEMENT INDEMNIFY AND KEEP SENSORYFX INDEMNIFIED AGAINST ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING ALL REASONABLE LEGAL FEES) WHICH MAY ARISE IN RESPECT OF A BREACH OF, OR A FAILURE TO MEET ANY OF THE AFORESAID REPRESENTATIONS, WARRANTIES AND/OR UNDERTAKINGS IN THIS CLAUSE 9.
    • The Applicant undertakes to notify SensoryFX immediately of:
      • any change of address;
      • cessation of business; and / or
      • change in ownership or shareholding of the Applicant.
    • The Applicant acknowledges and accepts that, notwithstanding any sale of business interest, he/she/ they shall remain liable in full for the settlement of the debt to SensoryFX and he/she/they undertake to inform SensoryFX within 7 (seven) days and by registered mail, of any such change.
    • The Applicant hereby declares that the Applicant has not specifically informed SensoryFX of any particular purpose for which the Applicant wishes to buy/acquire/use the Goods.
    • The Applicant hereby authorises SensoryFX, the Applicant’s other creditors, the Applicants bank and auditors and / or credit bureaus to make credit information available to each other, and also authorises and consents to SensoryFX drawing such credit information from any sources whatsoever regarding the Applicant as it deems necessary, including information of the directors, members, partners and/or trustees.
    • THE APPLICANT SHALL AT ALL TIMES WHETHER DURING OR AFTER TERMINATION OR EXPIRY OF THIS AGREEMENT INDEMNIFY AND KEEP SENSORYFX INDEMNIFIED AGAINST ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING ALL REASONABLE LEGAL FEES) RESULTING FROM ANY ADVICE GIVEN, RECOMMENDATIONS MADE, PRODUCTS SOLD OR USED OR ARISING FROM ANY CAUSE WHATSOEVER AS ENVISAGED IN THE PRECEDING PARAGRAPHS AND HEREBY WAIVES ANY SUCH CLAIM.
  3. EVENTS OF DEFAULT
    • Without derogating from the rights of SensoryFX in law or otherwise, an event of default shall occur should:
      • the Applicant fails to pay any amount to SensoryFX on the due date thereof;
      • the Applicant fails to comply with any term or condition of this Agreement and fail to remedy that breach, if capable of remedy, within 7 (seven) days after being called to do so;
      • the Applicant or any person or entity that provides security for the Applicant (“Obligor”) performs any act analogous to an act of insolvency specified in the Insolvency Act, 1936 or an act as defined in Section 344 of the Companies Act, 1973, read with Schedule 5 of the Companies Act, both as amended or substituted from time to time;
      • any asset deemed by SensoryFX to be a material asset of the Applicant or Obligor, be attached by any third party with a writ of execution and should the Applicant fail within 14 (fourteen) business days of such attachment to take the necessary steps to have such attachment set aside and thereafter to pursue such steps with due diligence to a successful conclusion;
      • any judgment be granted against the Applicant or Obligor and remain unsatisfied for a period of 7 (seven) business days after date of judgment or should the Applicant fail within 7 (seven) business days of such judgment to take the necessary steps to appeal against or rescind such judgment and thereafter to pursue such appeal or rescission with due diligence to a successful conclusion;
      • any order of Court, whether provisional or final, and whether voluntarily or compulsorily, be granted for the winding up of the Applicant or Obligor;
      • the Applicant or Obligor gives notice to take steps to convene a meeting of its shareholders/directors to adopt a resolution placing it in liquidation or under business rescue in either case, whether provisionally or finally;
      • the Applicant or Obligor enters into a compromise, composition or arrangement with its creditors generally, or any class thereof;
      • any warranty or representation made by the Applicant or Obligor, which was taken into consideration, and was materially relied upon by SensoryFX in accepting an Order from the Applicant as set out hereunder or accepting the relevant security, guarantee or suretyship as collateral, be found to be untrue or incorrect in any material respect;
      • the Applicant or Obligor becomes unable to conduct its normal course of business for whatsoever reason;
      • the Applicant repudiates this Agreement; or
      • if any of the following occurs in relation to the Applicant:
        • the Applicant carries on business either recklessly, with gross negligence, with the intent to defraud or for fraudulent purposes;
        • the Applicant carries on business or trades under insolvent circumstances; or
        • an application to court has been made for an administration order in respect of the Applicant.
      • If the Applicant fails to remedy such event of default (where capable of remedy) within the applicable grace period calling upon the Applicant to do so, or if the event is not capable of remedy and SensoryFX gives notice that such event has occurred and SensoryFX is exercising its rights pursuant hereto, then:
        • all the Applicant’s indebtedness to SensoryFX (actual or contingent) will be due and payable immediately irrespective of any terms or conditions otherwise applicable to such indebtedness;
        • SensoryFX may demand and recover payment of all amounts so declared due or deemed to be due;
        • the Applicant must pay interest calculated at the then prevailing Prime Rate plus 3 (three) percentage points, calculated on the amount so due and payable (including any unpaid interest which will be capitalized) calculated from the date of demand to date of receipt of payment;
        • SensoryFX may exercise any or all of its rights under any security provided by the Applicant or Obligor;
        • SensoryFX may appropriate any amounts standing to the credit of any of the Applicant’s accounts in SensoryFX’s books in reduction or liquidation of the amounts owing to SensoryFX;
        • SensoryFX may refuse to supply further Goods to the Applicant, including any Goods subject to an Order accepted by SensoryFX but not delivered prior to the date of exercising such discretion and further that SensoryFX shall not be held liable to the Applicant for any loss or damage which the Applicant may sustain as a result of SensoryFX cancelling this Agreement or refusing to supply Goods; and
        • SensoryFX may demand return of any Goods not paid in which event the Applicant shall return the Goods forthwith to SensoryFX at the Applicant’s own cost and expense.
  1. DISPUTE RESOLUTION
    • Should any dispute, disagreement or claim arise between the Parties (“the Dispute”) concerning this Agreement (including its terms and/or the rectification hereof, its termination and/or cancellation) and such Dispute cannot be resolved between the Parties within 15 (fifteen) days after the Dispute arose, then the Dispute shall be submitted to arbitration for resolution in accordance with the rules of the Arbitration Foundation of South Africa (“AFSA”) by an arbitrator or arbitrators appointed by AFSA and utilising such expedited proceedings as may be available in terms of such rules.
    • The Parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings shall be final and binding on the Parties and will be carried into effect.
    • Unless otherwise agreed in writing by the Parties, any arbitration in terms of this clause 11 shall be held in Pretoria.
    • Nothing in this clause 11 shall prevent any Party from seeking relief on an urgent or interlocutory basis with any competent court having jurisdiction.
    • For the purposes of this clause 11 and for the purposes of having any award made by the arbitrator/s being made an order of court, the Parties hereby submit to the jurisdiction of the North Gauteng High Court.
    • Notwithstanding anything to the contrary contained in this Agreement and/or in law and/or in the AFSA rules, the powers of the arbitrator(s) referred to in this clause 11 shall include the power to amend the provisions of this Agreement and to impose contractual terms on the Parties in relation to the Dispute in circumstances where Agreement specifically makes provision for such amendment or imposition and such relief is requested by a Party, if any.
  2. NOTICES
    • Any notice or other document to be served under this Agreement to a Party may be to be served at its nominated address.
    • The nominated address of the Applicant shall be the address of the Applicant specified in the Order.
    • For SensoryFX, the nominated address shall be as follows:

154 Edward Ave, Hennopspark, Centurion, Gauteng, South Africa

email: francois@sensoryfx.co.za

Attention: Francois Strydom

  • A Party shall be entitled from time to time, by written notice to the other, to vary its domicilium address to any other address within the Republic of South Africa, which is not a post office box.
  • All notices given in terms of this Agreement shall be in writing and any notice given by one Party to the other (the addressee) which:
    • is delivered by hand during the normal business hours at the addressee’s domicilium shall be deemed to have been received by the addressee at the time of delivery; or
    • is sent by email to the addressee’s email number shall be deemed to have been received by the addressee on the 1st (first) business day after the date of transmission thereof.
  • Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one of the Parties from the other including by way of email transmission shall be adequate written notice or communication to such Party.
  1. CONFIDENTIALITY
    • To the full extent reasonably possible, each Party agrees and undertakes to and in favour of the other:
      • not to disclose any of the terms and conditions contained in this Agreement to any third party; and
      • not to utilise or disclose to any third party any trade secrets or confidential information of the other of them, which trade secrets or confidential information is not in the public domain, disclosed or made available to it under and by virtue of this Agreement and/or during the course of the implementation thereof,

other than as may be necessary for the fulfilment of its duties, functions and obligations under this Agreement.

  1. PROTECTION OF PERSONAL INFORMATION
    • The Applicant hereby gives SensoryFX permission to collect and process the Personal Information and acknowledge that it understands the purpose for which it is required and for which it will be used.
    • SensoryFX undertakes and agrees that the Applicant’s Personal Information will only be processed by SensoryFX to give effect to the Disclosing Purpose.
    • The Applicant warrants that it is duly authorised to disclose the Personal Information to SensoryFX.
    • Only the Personal Information provided directly by the Applicant to SensoryFX will be collected and processed to give effect to the Disclosing Purpose.
    • SensoryFX may disclose the Personal Information to its service providers and shall ensure that it has agreements in place with such service providers to ensure that they comply with the privacy requirements set out hereunder and as required by the Protection of Personal Information Act, No 4 of 2013.
    • SensoryFX will store the Personal Information securely, electronically and in a centralised data base, which, for operational reasons, will be accessible to all within the organisation of SensoryFX on a need to know and business basis, save that where appropriate, some of the Personal Information may be retained in hard copy.
    • Once the Personal Information of the Applicant is no longer required due to the fact that the purpose for which the Personal Information was held has come to an end and has expired, such Personal Information will be safely and securely archived for such periods as may be required by any law applicable in South Africa. Thereafter SensoryFX will ensure that such Personal Information is permanently destroyed.
    • SensoryFX shall be obliged to provide adequate protection for the Personal Information it holds and to stop unauthorized access and use of the Personal Information in its possession. SensoryFX will, on an on-going basis, continue to review its security controls and related processes to ensure that the Personal Information remains secure. SensoryFX shall immediately notify the Applicant if a breach in information security or any other applicable security safeguard occurs or where there are reasonable grounds to believe that the Personal Information has been accessed or acquired by any unauthorised person and remedy any breach of a security safeguard in the shortest reasonable time.
    • When SensoryFX contracts with third parties, it will impose appropriate security, privacy and confidentiality obligations on them to ensure that Personal Information that it remains responsible for, is kept secure. SensoryFX will ensure that anyone to whom it passes the Personal Information to agrees to treat the Personal Information with the same level of protection as set out under this Agreement.
    • The Applicant has the right to request a copy of the Personal Information SensoryFX holds. To do this, the Applicant must follow the procedure as set out under the PAIA and POPIA Manual of SensoryFX and specify what information is required.
    • The Applicant has the right to ask SensoryFX to update, correct or delete Personal Information provided to SensoryFX.
    • The provisions of this clause 14 shall survive the termination of this Agreement, regardless of cause, in perpetuity.
  2. CESSION AND ASSIGNMENT

A Party shall not be entitled to assign, cede or delegate any of its rights and/or obligations in terms of this Agreement to any other person without the prior written consent of the other Party being obtained, provided that such consent shall not be unreasonably withheld or delayed in the event that such assignment, cession and delegation is to an affiliate of a Party.

  1. LEGAL PROCEEDINGS
    • The Applicant agrees and accepts that SensoryFX shall be entitled, in its sole discretion, but not compelled or obliged to institute any legal proceedings, which may arise from or in connection with this Agreement. All costs and disbursements incurred by SensoryFX, including legal costs on an attorney and own client basis in collecting arrears accounts from the Applicant, shall be for the account of the Applicant.
    • A certificate issued and signed by any director or manager of SensoryFX, whose authority need not be proved, in respect of any indebtedness of the Applicant to SensoryFX or in respect of any other fact including (but not limited to) the fact that the Goods was sold and delivered, shall be prima facie evidence of the Applicant’s indebtedness to SensoryFX.
    • The Applicant’s address stated in clause 12.2 above, shall be recognised as the Applicant’s domicilium citandi et executandi for the service of any court documents resulting from this Agreement. The Applicant’s physical, email and / or postal addresses as per this Agreement will be deemed to be the Applicant’s service addresses for all other documents resulting from or in terms of this Agreement.
    • It will not be necessary for SensoryFX to prove that the documents referred to in clause 16.3 above were received by the Applicant. In the event of the Applicant not receiving any of the documents in clause 16.3 above, the Applicant must timeously acquire a duplicate from SensoryFX, failing which it will be accepted that said documents were received by the Applicant.
    • All amounts due to SensoryFX shall be deemed to be a liquid amount for the purposes of provisional sentence or summary judgment.
    • Termination of this Agreement for any cause whatsoever shall not release a Party from any liability which at the time of termination has already accrued to the other Party or which thereafter may accrue in respect of any act or omission prior to such termination.
    • Except as expressly provided for in this Agreement, the rights and remedies contained herein are cumulative and are not exclusive of any other rights or remedies provided in law or otherwise.
    • THE CLIENT RENOUNCES THE BENEFITS OF THE LEGAL EXCEPTIONS: NON CAUSA DEBITI (AN EXCEPTION TAKEN TO THE EFFECT THAT THERE IS NO CAUSE FOR THE OBLIGATION AND RENUNCIATION PLACES THE ONUS ON THE CLIENT TO PROVE THAT A DEBT DOES NOT EXIST), NON NUMERATE PERCUNIA (AN EXCEPTION WHICH MAY BE TAKEN BY THE CLIENT ON THE GROUND THAT THE AMOUNT THEREOF WAS NOT PAID OVER) AND ERRORE CALCULI (A REVISION OF ACCOUNTS AND ERRORS OF CALCULATION AND NO VALUES RECEIVED).
  2. CHANGE IN LAW

In the event of any material change in the law applicable to this Agreement or its implementation, the Parties shall, on the basis of their respective declared good faith intention to implement this Agreement for the duration hereof, discuss with each other as to the impact of such event(s) and seek to agree such amendments to this Agreement as may be necessitated thereby and so as to account for the such inconsistency but so as to as nearly as possible preserve the commercial balance between them.  In the event of the failure of such discussions, the provisions of clause 11 shall apply.

  1. CONFLICT OF INTEREST

Neither of the Parties nor any of their respective representatives, employees, agents or subcontractors shall give to, or receive from the other, any of its affiliates or any representatives, employees, agents or subcontractors of the other any benefit, commission, fee, rebate, or any gift or entertainment of value in connection with this Agreement.

  1. SUBCONTRACTING

The Parties may subcontract any of its obligations under this Agreement to any third party, provided that in doing so it shall not in any way be relieved of any of its obligations in terms of this Agreement and shall not be entitled to any greater protection in law than it otherwise would have been entitled to have such subcontracting not been affected.

  1. NON-PARTNERSHIP

Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the Parties or as constituting neither Parties as the agent of the other for any purpose whatsoever. Neither of the Parties shall have the authority to bind the other or to contract in the name of or create a liability against the other in any way or for any purpose.

  1. WHOLE AGREEMENT

This Agreement constitutes the whole agreement between the Parties as to its subject matter and no agreement, representations or warranties between the Parties other than those set out herein are binding on the Parties.

  1. VARIATION

No addition to or variation, consensual cancellation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all the Parties or their duly authorised representatives.

  1. FURTHER ASSURANCE

The Parties shall co-operate with each other and execute and deliver to other of them such other instruments and documents and take such other actions as may be reasonably requested of the Parties from time to time in order to carry out, evidence and confirm its rights and the intended purpose of this Agreement.

  1. SEVERABILITY OF INVALID PROVISIONS

If any provision of this Agreement is declared to be invalid, the other provisions shall not thereby be affected or impaired and shall continue to be of full force and effect.  In such event, the Parties shall seek in good faith to negotiate valid substitute provisions for the provision so declared to be invalid that will as nearly as possible preserve the commercial balance between them.  In the event of the failure of such discussions, the provisions of clause 11 shall apply.

  1. RELAXATION

No latitude, lenience, extension of time or other indulgence which may be given or allowed by a Party to the other in respect of the performance of any obligation hereunder or enforcement of any right arising from this Agreement or in law and no single or partial exercise of any right by a party shall under any circumstances be construed to be an implied consent by such Party or operate as a waiver or a novation of, or otherwise affect any of that Party’s rights in terms of or arising from this Agreement or in law or estop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.

  1. RIGHTS OF THIRD PARTIES

The provisions of this Agreement are intended solely for the benefit of the Parties and their respective successors and it is not the intention of the Parties to confer any rights upon third parties.

  1. COUNTERPARTS

This Agreement may be signed in any number of counterparts, all of which taken together shall constitute one and the same instrument.

  1. COSTS

Each Party shall bear its own costs relating to the negotiation, drafting and execution of this Agreement and attendances incidental thereto.

  1. JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa and shall be subject to the exclusive jurisdiction of the Courts of the Republic of South Africa.

 

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