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STANDARD TERMS AND CONDITIONS
1. INTERPRETATION
1.1 In the Standard Terms and Conditions, unless inconsistent with or otherwise indicated by the context-
1.1.1 "the Client" shall mean the person or entity who appointed Smile to perform Services, as agreed upon between the parties;
1.1.2 "Smile" shall mean Smile Puzzles
1.1.3 "Force Majeure" shall include, without in any way limiting the generality thereof, acts of God, acts of the State or Government, exceptionally adverse weather conditions, riots, insurrections, sanctions, sabotage, acts of terrorism, political or civil disturbances, war, boycotts, embargoes, strikes, lock-outs, shortages of labour or materials, field shortages, delays in public transport, or any other similar circumstances beyond either party's reasonable control;
1.1.4 "Goods" shall mean, in the widest sense, movable or immovable goods, whether material or immaterial;
1.1.5 "Services" shall mean the services rendered from time to time by the Smile including without limiting the delivery of products and Goods,
1.1.6 "Standard Terms and Conditions" shall mean the agreement between the parties as contained in this document;
1.1.7 "VAT" shall mean the Value Added Tax payable at a rate as provided from time to time in the Value Added Tax Act, Act no. 89 of 1991;
1.2 any reference to the singular shall include the plural and vice versa;
1.3 a reference to any gender shall include the other gender;
1.4 any reference to natural persons shall include legal persons and vice versa.
2. APPLICATION OF STANDARD TERMS AND CONDITIONS
All Services rendered by Smile to the Client shall be performed subject to these Standard Terms and Conditions to the exclusion of all other terms and conditions contained in documentation issued by the Client, unless such other terms and conditions were expressly accepted in writing by a duly authorized representative of Smile.
3. PAYMENT
3.1 All amounts payable by the Client to Smile in respect of Services rendered shall be exclusive of VAT (if applicable), unless agreed to in writing otherwise.
3.2 The amounts payable by the Client to Smile shall be paid within 30 (Thirty) days from the date of Smile invoice payment.
3.3 Amounts payable to Smile shall be paid in 30days from date of Statement without deduction or set-off at the domicilium address of Smile or if so instructed in writing by Smile, by way of electronic transfer or direct deposit to the bank account of Smile as per the written instructions of Smile.
4. OWNERSHIP RISK AND INSURANCE
4.1 All Goods or products supplied by Smile to the Client shall be supplied subject the following terms and conditions:
4.1.1 The risk in respect of the Goods shall pass to the Client with effect from the date of delivery of the Goods to the Client, or such earlier date of which Smile may inform the Client in writing, prior to delivery of the Goods, from which date the Client shall be obligated to comprehensively insure the Goods in accordance with such terms and conditions as are acceptable to Smile and shall effect payment in terms of such insurance policies, and shall further provide Smile with proof acceptable to Smile, that payment has indeed been so effected, which insurance shall be kept in place and remain in force until full and final payment of all amounts payable to Smile by the Client;
4.1.2 The Goods shall at all times, prior to full and final payment be made to Smile remain the sole property of Smile and the Client shall take all steps necessary in order to inform all relevant third parties of such a fact and shall take active steps in order to prevent any impression being created with any third party that the Client is holding the Goods as owner thereof;
5. BREACH
Should any party ("the defaulting party") breach any of the terms agreed upon between Smile and the Client, the other party ("the innocent party") shall be obliged to notify the defaulting party in writing to remedy such breach, and should the defaulting party fail to do so within 7 (seven) days of receipt of such notification, the innocent party shall, without prejudice and in addition to any other remedies it may have, be entitled to:
5.1 cancel the Standard Terms and Conditions and to claim damages from the defaulting party; or
5.2 claim specific performance of any or all of the Standard Terms and Conditions.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership of all intellectual property rights relating to and in respect of the Services to be rendered to the Client shall vest in Smile.
6.2 All intellectual property rights, which in future arise and all modifications, enhancements, variations and improvements in respect thereof shall vest in Smile.
6.3 The Client undertakes to honor the rights of Smile, notwithstanding termination of the agreement for any reason whatsoever.
6.4 The Client acknowledges that all intellectual property rights regarding Services performed shall, notwithstanding the fact that the Client may become owner of the Goods, remain vested in Smile.
7. CONFIDENTIALITY
The parties acknowledge that the Confidential Information of a party is either the sole property of such party, or that such party has the right to use it and agree that they shall keep such Confidential Information of the other party confidential and shall not disclose it to any third party, except as is required by law at any time during the term of the agreement between the parties, or within 10 (ten) years after termination for whatsoever reason.
8. CESSION AND ASSIGNMENT
The parties shall not cede or assign any of their rights and/or obligations unless specifically authorized thereto in writing by the other party, which approval shall not be unreasonably withheld, provided however that Smile shall at all times be entitled to appoint subcontractors to perform all or any part of the obligations of Smile.
9. FORCE MAJEURE
9.1 In the event that any party should be prevented from carrying out any of their respective obligations by any reason of force majeure, the party so prevented shall advise the other party of the circumstances and the nature of the force majeure as well as the estimated duration and the extent to which the performance of such party is made impossible and the obligations of such party so prevented shall be suspended until the circumstances causing the force majeure cease to prevail.
9.2 Notwithstanding the provisions of clause 9.1, should the circumstances as provided for therein prevail for a period exceeding 1 (one) month, either party shall be entitled to cancel this agreement, in which event neither of the parties shall be liable to the other for any damages of whatsoever nature sustained by the other party and caused by the inability of the defaulting party to perform its obligations due to the force majeure.
10. LIMITATION OF LIABILITY
10.1 Smile shall, under no circumstances whatsoever, be liable to pay damages arising out of, or in the widest sense, in connection with the performance obligations of Smile, or the failure by Smile to perform, or any action or omission committed by Smile, any of its employees, agents or subcontractors, in excess of the agreed remuneration payable to Smile, provided, however, that Smile shall further, under no circumstances whatsoever, be liable to the Client for indirect or special damages and/or loss of income or profit howsoever arising, whether or not caused by employees of Smile, agents and/or subcontractors.
10.2 The provisions set out herein constitute a stipulation in favor of the employees, agents and subcontractors of Smile, which benefit may at any time be accepted by such parties.
11. DOMICILIUM
The parties elect as their respective domicilium citandi et executandi the addresses stipulated at the end of the Standard Terms and Conditions:
12. JURISDICTION
The parties hereto agree to the jurisdiction of the Magistrates Court notwithstanding the fact that any amount claimed may exceed the jurisdiction of the Magistrates Court or at the choice of Smile Puzzles
13. LEGAL COSTS
If Smile institutes proceedings or instructs attorneys or incurs any costs or expenses in connection with the enforcement of any of its rights against the Client, the costs and expenses so incurred shall be borne by the Client on the scale applicable as between attorney and own client. Such costs shall include, without limiting the generality of the foregoing, collection commission, tracing charges and costs if employing a detective or an investigator to obtain evidence of and or information concerning the Client's breach of the provisions hereof, which in all of the circumstances the Client acknowledges would be fair, reasonable and necessary for the protection of the interests of the Client in terms hereof.
14. GOVERNING LAW
The parties agree that the Standard Terms and Conditions shall in all respects be governed by and construed in accordance with the laws of the Republic of South Africa, including all matters of construction, validity and performance, but without reference to conflict of law principles.
15. SEVERABILITY
In the event of any clause in the Standard Terms and Conditions being construed as illegal, pro non scripto or invalid for any reason whatsoever, the remainder of the Standard Terms and Conditions shall not be invalid as a result thereof, and shall remain in full force and effect to the extent possible.
16. GENERAL
16.1 No latitude, extension of time or other indulgence which may be given or allowed by either party to the other in respect of any payment provided for, or the performance of any other obligation, 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 the rights of that party, or prevent such party from importing, at any time and without notice, strict and punctual compliance with each and every provision or term.
16.2 To the extent that any other agreement concluded between the parties being in anyway in conflict with any or all of the provisions set out herein, these Terms and Conditions shall take precedence and to the extent that any provisions are in conflict with these Terms and Conditions, such provisions shall be deemed to be pro non scripto and in all respects void and unenforceable.
16.3 The parties agreed that no variation or addition to consensual cancellation or novation of the Standard Terms and Conditions in its entirety or of any term or condition thereof shall be of any force or effect, unless such amendment or cancellation is reduced to writing and signed by all the parties or their authorized representative.
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