Terms And Conditions

Definitions

For the purpose hereof, allowing words and expressions shall be bear the respective meaning assigned hereunder, unless inconsistent with the context.

"Agreement" means any contract or agreement arising out of the acceptance of any offer, whether it arises of an offer made by the Supplier and accepted by the Customer, or an offer made by the Customer and accepted by the Supplier and whether by way of Sale Order, Quotation, Receipt, invoice or any other form or means of which these Terms and Conditions, shall automatically be deemed to be incorporated in and shall apply to any and all such agreements between the Parties;
"Business day" means any day other than a Saturday, Sunday or public holiday officially recognised as such in the RSA;
"Commencement Date" means the first day on which the first Sale Order is placed by the Customer to the Supplier for the supply of the Goods;
“Completion Date” means the date on which the Goods are:
1. ready for collection by the Customer; or
2. delivered by the Supplier or the Supplier’s courier to the Customer’s chosen address,

as the case may be;

“Confidential Information” means, inter alia, all information relating to the business conducted by the Supplier, its joint ventures, associates, affiliated companies and customers that is reasonably regarded as confidential, being information not in the public domain, together with the possible or likely function, purpose or application of that information whether in the current activities of the Supplier or any part or improvements to that information, and any recommendation, test or report of the Supplier or any consultant or agent in connection with that information, and whether such information is oral or written, recorded or stored by electronic, magnetic, electro-magnetic or other form or process or otherwise in a machine readable form, translated from the original form, recompiled, made into a compilation, wholly or partially copied, modified, updated or otherwise altered, or originated or obtained by, or coming into the possession, custody, control or knowledge of the Supplier, or any person or entity with which the Supplier deals, including, but without being limited to, inter alia, all inventions, technical data, research and development information, business records, information and notes, products, technology, software, programs, websites, mobile applications, data feeders, electronic and/or otherwise programs, coding, know-how, Trade Secrets, designs, drawings, specifications, processes and formulae, planning procedures, techniques or information, marketing plans, strategies and forecasts, business and product development plans, financial statements, budgets, prices, costs and financial projections, accounting procedures or financial information, names and details of customers, trade connections, customers and agents, employee details or any other information which the Supplier has an interest in keeping confidential;
“CPA” means the Consumer Protection Act, No. 68 of 2008, as amended from time to time;
"Customer" means the party who or which purchases the Goods from the Supplier, and shall include but not be limited to the Customer’s representatives, successors in title or permitted assignees, if applicable;
“Customised Goods” means non-standardised Goods, including but not limited to, pre-mixed Goods, which are obtained by and/or processed, manufactured or treated by the Supplier for supply to the Customer at the Customer’s request and in terms of the Customer’s specifications;
“Force Majeure” means any occurrence of Physical Force Majeure or one or more of the following event(s) or circumstance(s) (only) which are beyond the reasonable control of the Supplier acting (and having acted) in accordance with prudent operating practice and which results in or causes the failure of the Supplier to perform any of its obligations under the Agreement: act of the public enemy, war declared or undeclared, threat of war, terrorist act, blockade, revolution, strike, protest, riot, insurrection, civil commotion, global pandemic, lock-down or public demonstration;
"Goods" means products offered by the Supplier for sale from time to time, including but not limited to, home improvement and building products and tools;
“Parties” means the Supplier and the Customer, and “Party” shall mean either one of them as the context may indicate;
“Physical Force Majeure” means the occurrence of lightning, fire, storm, flood, earthquake, accumulation of snow or ice or explosion which are beyond the reasonable control of the Supplier acting (and having acted) in accordance with prudent operating practice and which results in or causes the failure of the Supplier to perform any of its obligations under the Agreement;
"Prevailing Legislation" means any and all legislation, by-laws and/or applicable regulations which may be applicable between the Supplier and the Customer, including but not limited to the CPA and the SANS Codes;
“Quotation” means the quotation for the supply of the Goods to be provided by the Supplier to the Customer in accordance with the Sale Order or which may be depicted or displayed on the Website or a third party site directed to from the Supplier’s Website;
"Rand" means the official currency of South Africa, and shall equally be denominated by the term "ZAR";
“Receipt” means the written receipt stating the amounts owed and paid by the Customer to the Supplier, which may be depicted or displayed on the Website or a third party site directed to from the Supplier’s Website, emailed to the Customer or provided by the Supplier to the Customer by any other method;
“Sale Order” means the request for a Quotation as displayed on the Website or a third party site as directed to from the Supplier’s Website (e.g. Shopify), alternatively, the details orally provided by the Customer to the Supplier, further alternatively the details provided by the Customer to the Supplier via electronic mail, or otherwise, and which shall be utilised by the Supplier in order to generate the Quotation, alternatively, supply the Goods;
“SANS Codes” means South African National Standards;
"Supplier" means AHM Online Proprietary Limited (Registration Number: 2025/283369/07), a private company duly incorporated and registered in accordance with the Company Laws of the Republic of South Africa;
“Storage Fee” means the fee charged by the Supplier for late collection of the Goods by the Customer set out in clause 4.10 below;
“Terms and Conditions” means these terms and conditions, or an amended version of these terms and conditions as the case may be;
“Trade Secret” means an invented formula, practice, process, design, instrument, pattern, commercial method, business connections, lists of actual or potential customers, or compilation of information which is not generally known or reasonably ascertainable by others, and by which a business can obtain an economic advantage over competitors or customers;
“VAT” means Value Added Tax; and
“Website” means the Supplier’s website located at www.ahm.co.za.

Application
1. The Terms and Conditions shall apply mutatis mutandis to all Agreements and all Goods sold, supplied, delivered, manufactured and/or repaired by the Supplier, as the case may be, and may be varied by the Supplier from time to time in its sole and absolute discretion by publishing a revised version of the Terms and Conditions on its Website.
2. The Customer warrants that any purchase of Goods by the Customer from the Supplier shall be subject to the latest version of the Terms and Conditions at that time whether or not notice of such updated or amended version was received by the Customer or sent by the Supplier prior to or at the time of such update or amendment.
3. Any orders placed through a third party site as directed to from the Supplier’s Website (e.g. Shopify) will be subject to the Agreement and such third party’s terms and conditions. The Customer indemnifies the Supplier accordingly against any and all liability for any breach by the Customer of any third party’s terms and conditions.
Duration
1. The Agreement shall commence on the Commencement Date failing which, the Agreement shall be of no force or effect and unenforceable by either party, unless otherwise agreed between the Parties in writing.
2. The Agreement shall subsist indefinitely.
3. The Customer may from time to time enter into transactions with the Supplier and the Agreement shall automatically apply to same as deemed provisions of such transactions.
Supply
1. The supplying of the Goods in terms of the Agreement is subject to the completion of the Sale Order by the Customer and acceptance thereof by the Supplier (in its sole and absolute discretion) and the Agreement shall not be valid and binding on the Supplier until such time as the Customer has completed the Sale Order in full and the Supplier is satisfied with the information provided in the Sale Order. This condition is stipulated for the benefit of the Supplier and may therefore be waived by the Supplier at any time in writing to the Customer.
2. The Customer warrants that the Sale Order shall set out the entire quantity of each item and that should same be incomplete, the Supplier shall be entitled to charge additional fees for the completion of the order.
3. The Customer warrants that if the Customer’s internal requirements change, it shall provide the Supplier with written notice of such change within no less than 2 (two) Business Days of such Sale Order and the Customer agrees to absorb any costs, expenses or other liability suffered by the Supplier as a result of the change.
4. The Supplier hereby sells the Goods to the Customer and the Customer in turn purchases same from the Supplier, on the terms and conditions set out in the Agreement.
5. The Goods shall be supplied by the Supplier for the period starting on the Commencement Date and on the terms more fully set out in the Quotation.
6. The Goods shall at all material and relevant times remain the sole property of the Supplier until such time as any and all relevant amounts have been paid to the Supplier in full and neither the Customer, nor any third party, shall have any claim thereto.
7. For the avoidance of doubt, the Goods shall be exempt from any landlord’s hypothec, lien, pledge or any other form of security or encumbrance that may be proffered by or applicable to the Customer.
8. Delivery of the Goods shall be deemed to have taken place once collected by the Customer from the Supplier’s designated address or once delivered by the Supplier (or its third party courier) to the address set out in the Sale Order, as the case may be, unless otherwise specified by the Customer in writing and acknowledged by the Supplier.
9. It is the responsibility of the Customer to ensure that an authorised representative is readily available to accept delivery of the Goods on the Completion Date and the Supplier reserves its right to charge the Customer for any transport or storage-related costs expended as a result of the Customer’s failure, refusal or neglect to accept delivery of the Goods, including but not limited to, any and all costs and expenses charged by the Suppliers third party courier (if applicable).
10. The Supplier will charge the customer a Storage Fee of 10% (ten percent) of the total order price in the Purchase Order and/or Quotation per month for every month after the stipulated collection date which the Customer fails to collect the Goods. The Customer acknowledges that the Storage Fee is a genuine pre-estimate of the Supplier’s liquidated damages.
11. In the event that the Customer defaults on any payment obligation in terms of the Agreement and the Supplier (or a third party courier) is obliged to collect any Goods provided, all reasonable costs related to the transportation of same shall be solely for the Customer’s account.
12. For the avoidance of doubt, the Parties specifically record and agree that the Agreement, and the Goods supplied in terms hereof, shall be a sale agreement and shall not be construed by either party to be a loan, hire-purchase, leaseback, rental or any similar agreement.
Risk and Title

The Parties agree that:

subject to clause 4.6 above, ownership and title to the Goods shall pass to the Customer, from delivery or deemed delivery of the Goods in accordance with clause 4.8 above; and
risk in the Goods shall pass to the Customer, from the Completion Date at which time the Customer will be liable for all risk in and benefit of the Goods and shall accordingly be liable to take out its own insurance over the Goods and the Supplier shall not be liable for any loss or damage to the Goods once transfer of risk of the Goods has taken place.

Supplier Obligations
1. The Supplier warrants and undertakes to the Customer that:
  1. once the condition precedent referred to in clause 4.1 above has been fulfilled, and against payment of any amounts due, owing and payable in terms of the Quotation, the Supplier shall deliver the Goods to the Customer;
  2. it shall retrieve the Goods for maintenance and/or recall purposes (if any) at the Customer’s own cost;
  3. the Goods shall be new and unused, unless otherwise agreed between the Parties;
  4. at the time of the conclusion of the Agreement and payment by the Customer to the Supplier in full, the Goods will be the property of the Customer and free of any encumbrance;
  5. it shall supply the Goods to the desired specifications, as requested by the Customer from time to time, however, the Supplier shall have no obligation to provide any licenses, certificates, permits and/or accreditation, of any kind whatsoever, to the Customer, unless otherwise prescribed by the Prevailing Legislation;
  6. to the extent that the supply and distribution of the Goods may be subject to a change in legislation, by-laws and/or regulations, which may result in the Goods supplied becoming illegal to possess, or be used, or supplied, the Supplier shall endeavour to replace the unlawful Goods as soon as possible, at the Customer's expense;
  7. it will observe the standards and principles set out by the Prevailing Legislation, in the conduct of its business;
  8. it will ensure that Goods are supplied in full, within the time period contemplated in the Quotation, unless reasonable notice is provided to the Customer;
  9. such reasonable notice referred to in clause 6.1.8 above, shall be determined based on the surrounding circumstances, and be in accordance with the industry best practices;
  10. it will timeously advise the Customer of any circumstances or events which may prevent or inhibit the Supplier in the supply of the Goods;
  11. it will not supply any Goods, without first obtaining a Sale Order from the Customer;
  12. it will undertake the necessary screening, oversight, management control and quality checks as may be required by the Prevailing Legislation to monitor any/all individuals supplying the Goods;
  13. it will issue detailed and complete Receipts, invoices and statements timeously, where applicable; and
  14. it will manage and resolve financial queries with the Customer.
2. Should any Goods be required to be removed by the Supplier in order to enable the Goods to be assessed, inspected or repaired, the Supplier shall not be liable to provide any replacement parts or Goods in the interim.
Customer Obligations

The Customer shall:

provide accurate and detailed information, as requested by the Supplier in the Sale Order, and warrants that all information which it has provided is current and accurate and may be relied upon by the Supplier;
to the extent that any of the information set out in the Sale Order is false and was or ought reasonably to have been within the knowledge of the Customer, same shall be deemed to be a material misrepresentation on which the Supplier has relied and the Supplier shall be entitled to elect to act in terms of the remedies set out in clause 19 hereinbelow, at its sole discretion;
pay any and all fees, specifically all Quotations and any other amount which may become due and owing in terms of the Agreement, in full and immediately in advance as set out in the Quotation and/or within 30 (thirty) days receipt of an additional invoice, as the case may be;
use its reasonable endeavours to keep and maintain the Goods in the state at which they were delivered to the Customer’s premises, and not do, or omit to do, anything which may result in damage or destruction of the Goods, until such time as ownership has passed in terms of clause 5.1 above;
not tamper or interfere with the Goods in any way or for any reason whatsoever;
bring to the Supplier's attention, as soon as possible, any damage or defect to any of the Goods by dispatching written notice of such damage or defect to customercare@ahm.co.za and thereafter make all arrangements reasonably necessary to allow the Supplier to attend at the premises where the Goods are present in order to repair and/or replace any defective or damaged Goods, alternatively to remove the Goods in order to repair same at the Suppliers premises and thereafter return same to the Customer or to replace same.

Fees and Charges
1. Subject to any Prevailing Legislation, the Customer shall pay:
  1. the Quotation amount plus any applicable VAT;
  2. any excess amount or administration fee payable;
  3. any processing or administration fee charged by a third party payment gateway provider (if applicable);
  4. any delivery costs including the costs of the Supplier’s third party courier (if applicable);
  5. any Storage Fee (if applicable);
  6. any fees charged by the Customer's bank for the purchase; and
  7. any other costs which may be applicable, from time to time, in terms of the Agreement.
2. Quotations shall be valid for acceptance within 24 (twenty-four) hours unless otherwise agreed between the parties in writing.
3. No guarantee or warranty as to the date or time of delivery is given or implied and the Supplier shall not be liable for any harm, loss and/or damage suffered by the Customer as a result of late delivery of the Goods, whether as a direct result thereof or consequential thereto.
4. If the Customer is unable to accept or requests deferment of execution of orders scheduled for delivery, the Supplier shall be entitled to invoice for payment as if delivery had been affected unless otherwise agreed by the Supplier in writing in respect of each item.
5. If Customised Goods are made to the Customer’s pattern or specification, the parties acknowledge and agree that the Supplier shall have no responsibility whatsoever for the infringement of any patent, trademark, copyright, industrial design rights or any other intellectual property rights of a third party which may exist at any material time during the duration of the Agreement and indefinitely thereafter.
6. The Customer hereby indemnifies the Supplier against any harm, loss or damage in respect of any proceeds or otherwise, resulting from the execution of the Customer’s orders in accordance with clause 8.5 above including, but not limited to, any legal costs incurred in defending a claim associated with the aforesaid infringement and/or alleged infringement on the attorney and own client scale.
7. Unless otherwise specified, all quoted amounts will be exclusive of VAT.
Repairs and Maintenance
1. The Customer warrants that in the event that it believes any Goods to be defective and/or inadequate in accordance with the specifications provided and has advised the Supplier in writing within 7 (seven) calendar days of delivery thereof that certain Goods are in need of maintenance, replacement and/or repair, the Supplier shall be provided a reasonable opportunity to collect and examine the Goods in question and repair, replace or refund the Goods, should same be appropriate in the circumstances.
2. To the extent that the Customer fails to provide the Supplier an opportunity to examine and repair, replace or refund the Goods, in accordance with clause 9.1 above, the Supplier shall bear no liability whatsoever for any defect found and/or repairs effected by a third party, save for and only to the minimum extent required by the CPA.
3. In the event that the Supplier accepts a return from a Customer, which shall be in the absolute and sole discretion of the Supplier, the Supplier shall be entitled to charge a 25% (twenty-five percent) handling fee and the Customer shall be liable for all costs associated with collection of the Goods from or delivery of the replacement Goods to, the Supplier’s premises.
4. All errors, shortages or wrong deliveries shall be reported to the Supplier by the Customer within 7 (seven) calendar days of delivery thereof.
5. The Customer acknowledges and agrees that it is solely responsible to report any errors, shortages or wrong deliveries and that the Supplier shall not be liable to replace, repair and/or refund any errors, shortages or wrong deliveries which are reported to it after the 7 (seven) calendar days from delivery thereof, unless otherwise required by the CPA and only to the minimum extent of the CPA.
6. The returned Goods must have been purchased from the Supplier and correspond to the relevant Quotation(s) and/or Receipt(s).
7. Goods modified in any way will not be accepted for return, even if the Supplier has supplied incorrectly. The onus is on the Customer to check the Goods before modifying or sending the Goods for modification.
8. The Supplier’s liability in respect of returned Goods is limited to the replacement cost of the Goods provided. This liability is subject to proof by the Customer that the Goods were faulty when they left the premises of the Supplier. The Supplier accepts no liability for any costs arising out of consequential or indirect damage or loss. No guarantee or warranty is given or implied unless specifically stated in writing by the Supplier’s authorised representative.
9. The Supplier accepts no liability or return of Goods, which have been subject to any process after leaving the Supplier’s warehouse (even if incorrectly supplied), for example: cutting, threading or plating.
10. In the event that the Supplier determines in its sole and absolute discretion that a refund is appropriate, the Supplier reserves the right to effect such refund by way of:
  1. refund of the monies paid;
  2. store credit; or
  3. exchange.
11. The Supplier shall not be liable to replace, repair or refund any Customised Goods.
12. In the event of the Supplier being unable to procure Customised Goods from any source, the Supplier reserves the right to cancel the Agreement at its sole and absolute discretion and return any funds paid by the Customer to the Supplier that remain after deducting any applicable costs in terms of the Agreement.
13. The Supplier shall not be liable for any recall of the Goods previously supplied.
14. This clause 9 shall not be construed as any representation or warranty made by the Supplier in excess of any minimum implied statutory warranty applicable in accordance with the CPA. The Supplier makes no representations or warranties, express or implied, of any kind whatsoever and there shall be excluded from this Agreement any further warranties or conditions, either express or implied, statutory or otherwise, save for those specifically required and applicable in accordance with the CPA and only to the extent of such application. If any clause(s) elsewhere in this Agreement conflict with this clause, the provisions of this clause shall prevail.
Fit for Use

The Supplier makes no warranty whatsoever that the Goods or the engineering of the Goods shall be applicable for use for any specific purpose required by the Customer and the Customer hereby indemnifies the Supplier against any harm, loss or damage suffered by the Customer as a result of any Goods which are not fit for their purpose, unless otherwise agreed between the parties in writing.

Payment
1. All payments will be made by the Customer in advance at the time of placing the Sale Order and accepting the Quotation.
2. Payments will be made by the Customer through the relevant payment gateway only.
3. The Supplier will not be obligated to procure or supply any Goods at all until such time as all payments are made by the Customer to the Supplier in full.
4. The Customer acknowledges and agrees that, should it fail to pay any amounts despite demand from the Supplier, the Supplier shall be entitled, without any further notification being provided to the Customer, to recover any Goods from the Customer (at the Customer’s own cost) and to list the Customer with any recognised credit bureau.
Limitation of Liability
1. The Supplier shall use its best endeavours to procure timeous delivery; however, the Supplier shall not be liable to the Customer for damages arising from any failure by the Supplier to fulfil any condition, nor will such failure on the Supplier’s part entitle the Customer to cancel the transaction or the Agreement.
2. The Supplier will not be responsible for any loss suffered by the Customer, or by any third party, arising from whatsoever cause, including but not limited to the loss of profit, damage, direct, indirect or consequential damages, or delay attributable to defective or substandard goods and/or materials vis major, strikes, lock-outs, cessions of labour, transport or delivery delays, shortages and hours of labour and/or accidents of any kind. The Customer hereby indemnifies the Supplier accordingly.
3. The maximum total liability of the Seller in respect of any and all claims made from time to time by the Customer (if any) shall be an amount equal to 100% (one hundred per cent) of the purchase price of the Goods only.
Intellectual Property
1. The Parties acknowledge and agree that the intellectual property relating to the Goods is proprietary to the Supplier and the title thereto is and shall remain vested with the Supplier at all relevant times.
2. All applicable rights to patents, copyrights, trademarks, trade secrets, moral rights and any other intellectual property right in and to the Goods or any modifications or derivative works belongs to and shall remain the sole property of the Supplier.
3. The Customer acknowledges that the Goods granted under the Agreement do not provide the Customer with license, title to or ownership of the intellectual property thereof, including any enhancements, updates or other modifications to the Goods.
Protection of Personal Information
1. Given the nature of the Sale Order and the sensitive information captured therein, the Supplier hereby warrants that:
  1. it has complied and shall remain to comply with all provisions of the Protection of Personal Information Act 4 of 2013, as amended from time to time;
  2. all relevant checks, tests, safeguards and procedures in terms of the aforesaid Act, as amended from time to time, have been followed and adequately adhered to; and
  3. all relevant permissions, waivers, authorisation, approvals and necessary consent has been obtained.
2. The Suppliers’ Privacy Policy can be found at https://ah-marais.myshopify.com/pages/privacy-policy.
Website
1. The information contained on the Website is provided by the Supplier and/or its partners, affiliates, owners, subsidiaries, officers, directors, sponsors, advertisers, suppliers or agents without warranty of any kind, expressed or implied, including, but not limited to, any implied warranties of reliability or fitness for any particular purpose.
2. Transactions entered into between the Customer and the Supplier through the Website will be legally binding.
3. The Customer acknowledges and agrees that any purchases made through the Website rely on a third party website and third party payment gateway and the Supplier makes no warranties or representations as to the proper functioning or operation of same.
4. The Customer acknowledges and agrees that any link to a third party website which may appear on the Website and be connected through the Website is at the Customer's sole risk. The Supplier makes no warranties or representations as to the proper functioning or operation of same and the Customer hereby indemnifies the Supplier against any harm, loss or damage which may be caused by a third party’s website.
5. The Customer hereby indemnifies the Supplier against any harm, loss, damage or any liability of whatsoever nature which the Customer may suffer as a result of an error, delay, duplication or mistake relating to the third party payment gateway.
Legal Entity Customers
1. Notwithstanding anything to the contrary herein contained, if the Customer is a legal entity, the authorised representative who places the Sale Order (the “Surety”) hereby binds himself/herself/themselves as surety(s) and co-principal debtor(s) in solidum with the Customer, in favour of the Supplier, for the due and proper performance of all the obligations of the Customer in terms of this Agreement.
2. In the event of there being 2 (two) or more principal debtors, the Supplier is entitled to recover the full debt from the Surety, without first requiring payment from the other debtor.
3. The Surety warrants that all authorisations required by the Surety in connection with the entry into, performance, validity and enforceability of this Agreement have been obtained or effected (as appropriate) and are in full force and effect.
Force Majeure
1. If the Supplier is unable to perform all or a material part of its obligations under the Agreement by reason of Force Majeure, then the Supplier shall, as soon as reasonably practicable but in any event within 5 (five) Business Days, notify the Customer in writing (a “Force Majeure Notice”) setting out:
  1. full particulars of the Force Majeure;
  2. the impact of the Force Majeure on the Supplier’s obligations;
  3. under the Agreement;
  4. the Supplier’s reasonable estimate of the length of time by which its performance has been and will continue to be affected by such Force Majeure; and
  5. the steps which it is taking, intends to take, or will take to remove or mitigate the adverse consequences of the Force Majeure on its performance hereunder.
2. In the event that a Force Majeure Event has occurred and subsist for a period in excess of 6 (six) months, then the Supplier shall, provided that it has complied with the requirements of this clause 17, be entitled to terminate the Agreement and shall not be liable for any failure to perform an obligation under the Agreement as a consequence of such event but to the extent only that:
  1. such performance is prevented, hindered or delayed by Force Majeure; and
  2. such failure could not have been removed or mitigated by the Supplier acting reasonably.
Notice
1. Each Party chooses as its address for all purposes under the Agreement (“Chosen Address”), whether for serving any court process or documents, giving any notice, or making any other communications of whatsoever nature and for any other purpose arising from the Agreement, as follows:

Supplier: 07 Church Street,
Robertson,
Western Cape,
6705

Customer: The address as set out in Sale Order or as otherwise provided by the Customer to the Supplier in writing.

Any notice required or permitted under the Agreement shall be valid and effective only if in writing.
Any Party may by written notice to the other Party change its Chosen Address to another physical address in the Republic of South Africa and such change shall take effect on the 7th (seventh) day after the date of receipt by the other Party.
Any notice to a Party contained in a correctly addressed envelope and:
1. sent by courier to it at its Chosen Address; or
2. delivered by hand to a responsible person during ordinary business hours at its Chosen Address,

shall be deemed to have been received on the date of delivery.

Any notice sent by way of electronic mail during business hours shall be presumed to have been received on the date of successful transmission of the electronic mail. Any electronic mail sent after business hours or on a day which is not a Business Day will be presumed to have been received on the following Business Day.
Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by one of the Parties from the other shall be adequate written notice or communication to such Party.

Breach
1. Should the Customer:
  1. fail to meet any of its payment obligations in terms of the Agreement, as and when such payment becomes due;
  2. take steps to be wound up, liquidated (whether voluntarily or otherwise) or be placed under Business Rescue;
  3. take any actions, or fail to take any actions, which has the effect of vitiating (or potentially vitiating) the insurance cover which the Supplier has in respect of all Goods supplied by the Customer in terms of the Agreement or any other agreement; or
  4. commit any breach of any other provision of the Agreement and fail to remedy same within 7 (seven) days of receipt of notice from the Supplier calling on the Customer to remedy;

same shall constitute a material breach of the Agreement and, without prejudice to any other rights which the Supplier may have in law, shall entitle the Supplier, without providing any notice to the Customer, to terminate the Agreement and recover any and all damages which it may have suffered as a result of such termination, specifically including, by not limited to, immediate payment of the balance of any Quotation amounts and further amounts owing to the Supplier.

Termination of the Agreement at any time prior to the expiry of the term of the Agreement shall entitle the Supplier to recover any and all Goods provided to the Customer, and the Customer shall provide the Supplier access to the Goods immediately upon demand by the Supplier.

Confidentiality
1. The Customer agrees and acknowledges that:
  1. he/she/they/it may have access to the Confidential Information of the Supplier, including, but without being limited to, Trade Secrets, know-how and expertise, intellectual property, information relating to the identity of customers, suppliers and licensors of the Supplier, products, pricing methods and models, trade connections, procedures and its financial and marketing operations;
  2. were any of the Confidential Information to be given to or used by any competitor or potential competitor of the Supplier, the Supplier would be severely prejudiced and could suffer substantial damage and loss;
  3. because the Customer may have access to the Confidential Information during the duration of the Agreement, it is reasonable for the protection of the Supplier that the Customer shall be restrained from using the Confidential Information, for his/her/their/its own or for anyone else’s benefit.
2. For the reasons stated in clause 20.1 above, the Customer hereby undertakes that it will not use any of the Confidential Information for its own benefit or for the benefit of anyone else.
3. The provisions of this clause 20 shall survive the expiration or termination of the Supplier’s business relationship with the Customer.
General
1. Notwithstanding anything to the contrary herein, the relationship of the Parties shall be governed by the terms of the Agreement, and nothing contained herein shall be deemed to constitute a partnership between them. The Parties shall not by reason of the actions of any one of them incur any personal liability as co-partners to any third party, and no Party shall be entitled or empowered to represent or hold out to any third party that the relationship between them is that of partnership.
2. The Customer hereby indemnifies and holds the Supplier harmless against all or any loss, liability, damage and expense which the Supplier may suffer as a result of, or which may be attributable to, any breach by the Customer of any of the warranties or undertakings set out in the Agreement, including any legal costs on an attorney and own client scale.
3. The Supplier has the right in its discretion to deduct from any amount owing by it to the Customer, any amount owing by the Customer to the Supplier.
4. The Customer shall not be entitled to deduct or set-off from any amount owing by it to the Supplier, any amount owing by the Supplier to the Customer.
5. All fees and charges set out herein are subject to change at any time without the Customer's permission being required, at all times subject to all Prevailing Legislation. The Supplier shall inform the Customer of any changes to any fees and charges, as well as the date from when these changes are to apply.
6. No latitude, extension of time or other indulgence which may be given or allowed by the Supplier to the Customer in respect of any payment or the performance of any other obligations hereunder, shall under any circumstances operate as a waiver or a novation of, or otherwise affect the Supplier's rights in terms of or arising from the Agreement or preclude the Supplier from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof, nor shall any such latitude, extension of time or other indulgence discharge or otherwise affect the liability of the Customer.
7. Each Party warrants to the other that it has the power, authority and legal right to sign and perform the Agreement and that the Agreement has been duly authorised by all necessary actions of its directors and/or executive committee, if so applicable, and constitutes valid and binding obligations on it in accordance with the terms of the Agreement.
8. The Customer consents, in terms of Section 45(1) of the Magistrate's Court Act, Act No. 32 of 1944, in respect of any proceedings out of and/or in connection with the Agreement which may be instituted by the Supplier against the Customer, to the jurisdiction of any Magistrate's court which at the time of the institution of the proceedings in question has jurisdiction in terms of Section 28(1) of the said Act.
9. All words and phrases importing any one gender includes each of the other genders, for the purposes hereof, all words in the singular shall incorporate the plural, and any reference to a natural person shall include a juristic person, and vice versa.
10. The Supplier has the right, without notice, to cede, assign, transfer or make over all or any of its rights and/or obligations in terms hereof to any other person or persons. The Customer shall not be entitled to cede or assign any rights or benefits under the Agreement without the Supplier's prior written consent.
11. The Parties undertake to do all such things, perform all such acts and take all steps to procure the doing of all such things and the performance of all such acts, as may be necessary or incidental to give or be conducive to the giving of effect to the terms, conditions and import of the Agreement. The Parties shall at all times during the continuance of the Agreement observe the principles of good faith towards one another in the performance of their obligations in accordance with the terms of the Agreement. This implies that they shall (i) at all times during the term of the Agreement act reasonably, honestly and in good faith; (ii) perform their obligations arising from the Agreement diligently and with reasonable care; and (iii) make full disclosure to each other of any matter that may affect the execution of the Agreement.
12. Each Party acknowledges that it has been free to secure independent legal advice as to the nature and effect of all of the provisions of the Agreement and that it has either taken such independent legal advice or dispensed with the necessity of doing so. Further, each Party hereto acknowledges that all of the provisions of the Agreement and the restrictions herein contained are fair and reasonable in all the circumstances and are part of the overall intention of the Parties in connection with the transaction set out in the Agreement.
13. Notwithstanding anything to the contrary herein contained or implied by law, each and every term and condition of the Agreement shall be deemed to be separate and severable from the other terms hereof. If any term is found by any court of competent jurisdiction to be vague or invalid or unenforceable, that term shall be treated as pro non scripto and shall in no way affect the validity of the remaining terms and provisions hereof.
14. Termination of the Agreement for any cause shall not release a Party from any liability which at the time of termination has already accrued to another Party or which thereafter may accrue in respect of any act or omission prior to such termination.
15. The validity of the Agreement, its interpretation, the respective rights and obligations of the Parties and all other matters arising in any way out of it or its expiration or earlier termination for any reason shall be determined in accordance with the laws of the Republic of South Africa. The Parties hereby consent to the adjudication of any dispute, to the degree that such dispute is not otherwise regulated in terms of the Agreement, by any South African court of competent jurisdiction; in accordance with, and in amplification of which, the Parties hereby specifically consent to the exclusive jurisdiction of such court.
16. The Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement, which shall be binding on all of the Parties hereto, notwithstanding that all of the Parties are not signatories to the original or the same counterpart.
17. Each Party shall be liable for the costs of its own advisors, including those costs necessary and incidental to drafting, negotiating and settling the Agreement. Any costs, including legal costs on a full indemnification basis (failing which, the highest permissible legal tariff), incurred by a Party arising out of a breach by any other Party of any of the provisions of the Agreement, shall be borne by the Party in breach.
18. All references in the Agreement to writing signed by a Party shall, notwithstanding anything to the contrary in this Agreement, be read and construed as including any form of electronic signature and an email shall include ‘in writing’.
19. The terms and conditions of the Agreement shall govern all agreements, schedules and/or annexures (past or future) between the Customer and the Supplier in relation to the supplying of Goods by the Customer and should the provisions of any other agreement concluded between the Parties contradict the provisions of the Agreement, the provisions of the Agreement shall prevail, unless such other agreement is in writing, signed by the parties and specifically excludes the provisions of the Agreement.

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