DEALER ONLINE ORDER SYSTEM

STANDARD TERMS AND CONDITIONS OF CONTRACT

1. DEFINITIONS AND INTERPRETATIONS

   1. In this agreement unless the context clearly indicates a contrary intention –

      1. an expression which denotes –

         1. a natural person includes an artificial person and vice versa;

         2. the singular shall include the plural and vice versa;

         3. any one gender shall include the other

      2. The following expressions shall bear the following meanings and related expressions bear corresponding meanings:

         1. “Client” – the third party, approved by the Dealer to utilize the Online Order System;

         2. “Company” – Vincemus Investments (Pty) Ltd T/A the Company, Registration number: 1969/004762/07;

         3. “Dealer” - a dealer in terms of a Dealer Agreement with the Company

         4. “Agreement” – Company in respect of the Online Order System provided by the Company to Dealers and Clients;

         5. “Good Industry Practice” being the standard norms, practices and ethical standards applied within the industry;

         6. “Dealer Agreement” the dealer agreement entered into between the Dealer and the Company governing the contractual relationship between the Dealer and the Company;

         7. “Signature Date” - the date on which this Agreement is signed by the last signing party;

         8. “Parties” – the Dealer, Client and the Company;

         9. “Business Day” - any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;

         10. “Month” - one of the 12 named months of the calendar;

         11. “Fee” – the fee payable by the Dealer to the Company as stipulated on the Invoice in respect of any Online Order placed using the Online Order System;

         12. “Commencement Date” - the date of registration on the Online System as a Dealer;

         13. “Termination Date” – the date on which the Dealer elects to be removed from the Online System and/or is removed by the Company, within the Company’s sole and absolute discretion in accordance with this Agreement;

         14. “Goods” – the goods available for order from the Company, on the Online Order System;

         15. “OHASA” - Occupational Health and Safety Act 85 of 1993;

         16. “Order” - any order accepted by the Company which has been placed on the Online Order System by the Dealer and/or by a Client, which has been accepted and approved by the Dealer

   2. any reference to an enactment is to that enactment as at the Commencement Date and as amended or re-enacted from time to time;

   3. if any provision in a definition or introduction clause is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition or introduction clause, effect shall be given to it as if it were a substantive provision in the body of the Agreemen

   4. words and expressions defined in this Agreement shall bear the same meanings in appendices to this Agreement which do not themselves contain their own definitions;

   5. when any period is prescribed in this Agreement, that period shall be reckoned exclusively of the first day and inclusively of the last day unless the last day is not a Business Day, in which case the last day shall be the next succeeding Business Day;

   6. where figures are referred to in numerals and in words, if there is a conflict between the two, the words shall prevail;

   7. this Agreement shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa;

   8. Each of the provisions contained in this Agreement and in each clause and sub-clause hereof shall be construed as independent of every other such provision to the effect that, if any provisions of this Agreement shall be determined to be illegal, invalid and/or unenforceable, then such determination shall not affect any other provisions of this Agreement all of which shall remain in full force and effect.

   9. The rule of construction that the contract shall be interpreted against the party responsible for the drafting or preparation of the Agreement, shall not apply.

2. AGREEMENT

   1. The Company offers approved Dealers and Clients access to its Online Order System to place orders, view stock availability, manage and view orders and for Dealers to view invoices, subject to these standard terms and conditions. The Dealer and Client, by making use of the Online Order System of the Company consent to these standard terms and conditions of use, as amended from time to time by the Company, within its sole and absolute discretion and which amendments shall be effective from the date of same being published on the Online Order System.

   2. It shall at all times remain the sole responsibility of the Dealer and Client to ensure it has read and understood the terms and conditions, including any amendments and variations and act in accordance with same.

   3. These terms and conditions shall apply in conjunction with the terms and conditions contained in the Dealer Agreement, should any standard terms and conditions be in conflict the terms and conditions contained in the Dealer Agreement shall take precedent.

3. ONLINE ORDER SYSTEM REGISTATION

   1. No Party shall be permitted to utilise the Company’s Online Order System without being registered as a Dealer or Client by completing the online registration process and submitting the required registration documentation to the Company via the Online Order System.

   2. Only approved Dealers and Clients shall be permitted to register on the Online Order System, Dealers are required to have fully completed and signed Dealer Agreements with the Company governing the Dealership relationship between the Parties. Clients of each Dealer requires approval/acceptance by the Dealer in order to proceed with registration on the Online Order System.

   3. The Dealer shall be responsible for ensuring that the information submitted in its registration as a Dealer on the Online Order System is true, accurate and correct and that the Dealer is permitted to disclose the information provided, including personnel information such as names, job titles, contact details as well as confidential and/or proprietary information of the Dealer.

   4. The Dealer shall be responsible for the approval of all Client registrations on the Online Order System and furthermore to verify that the information provided by the Client is true, accurate and correct.

   5. The Dealer acknowledges that it shall be entirely within the discretion of the Company, at any time and without having to give any reasons therefore to de-register the Dealer from the Online Order System.

4. ONLINE ORDERS

   1. The Online Order System was developed to assist Dealers with providing an online order platform for use by the Dealer and/or Clients to ensure efficient and effective orders and subsequent deliveries thereof.

   2. The Company shall do its best to ensure the information displayed on the Online Order System is correct and up to date, notwithstanding the aforesaid, the Dealer and Client acknowledge that neither, jointly or severally shall have a claim against the Company for incorrect information relating to availability of stock and/or pricing thereof.

   3. The Dealer shall be liable for any order on the Online Order System placed by a Client, when such Client and Order has been approved by the Dealer.

   4. Unless otherwise agreed in writing the prices at which the Goods are sold, shall be the Company’s ruling prices as at the date of delivery of the Goods, whether notified to the Dealer and/or Client or not. The Company shall not be liable to the Dealer for any fluctuation, amendment and/or error in the prices reflected on the Online Order System, the Dealer consents to pay the Company any increase in price between the price at the date of Order and date of delivery to the Dealer by the Company.

5. DELIVERY

   1. Notwithstanding the fact that an order has been placed by a Client on the Online Order System, the Company shall effect delivery in terms of any Order to the nominated premises of the Dealer and the Dealer shall be responsible for delivery of the Order, or any part thereof to the Client, which cost shall not be recoverable from the Company.

   2. The Company shall endeavour to fulfil the terms of any order on the Online Order System placed by the Dealer within a reasonable time or within the time stipulated (if any) however it being expressly agreed that time shall not be of the essence and the Company accepts no liability for any late, short and/or non-delivery and/or in respect of the cancellation of any Order placed on the Online Order System
6. PAYMENT

   1. All payments in respect of any Order on the Online Order System shall be due and payable without exchange, deduction or set-off, in accordance with the payment terms of the Company as set out in the Dealer Agreement. The Dealer will be liable for the payment of value added tax (VAT) on all amounts reflected on an invoice generated through an Order on the Online Order System, should VAT be payable.

   2. The Dealer shall be liable to the Company for full payment, in respect of each Order on the Online Order System from the Commencement Date. The Dealer shall be solely responsible for the recovery of the invoice amount from the Client in instances where the Client has placed the Order on the Online Order System.

   3. A certificate issued on behalf of the Company and signed by a director, general manager, regional manager, company secretary or financial manager shall be prima facie proof of the amount due by the Dealer to The Company for the purpose of obtaining Summary Judgment against the Dealer.

   4. Unless the Dealer objects in writing to the balance outstanding which appears on an invoice issued to the Dealer on submission of the Dealers order on the Online Order System within 7 (Seven) days from the date of order the invoiced amount shall be prima facie proof of the amount due and owing by the Dealer and the onus to prove the amount is not due and owing shall be borne by the Dealer.

   5. The Company shall have the right to claim interest on any arrear amounts, at the maximum permissible rate of interest as determined from time to time in terms of the provisions of the National Credit Act, 34 of 2005, such interest to be compounded monthly from due date to date of payment in full.

   6. The risk in the Goods shall pass to the Dealer on delivery while ownership shall remain vested in the Company until full payment of the invoice amount has been received from the Dealer in respect of any Order on the Online Order System. The Dealer shall notify the Client that ownership in the Goods shall remain vested in the Company until the Company has received payment in full and the Goods shall not be subject to any lien and/or hypothec by any third party. The Dealer hereby agrees to institute any action, at the Dealers cost for the expedient release of any Goods held by any third party in terms of a lien, hypothec or otherwise in respect of which Goods ownership remains vested in the Company.

7. FORCE MAJEURE

   1. The Company shall not be obliged to accept or fulfil any Order placed on the Online Order System nor shall the Company be liable in any respect whatsoever for its failure to perform hereunder due to contingencies beyond its control, including but not limited to, acts of God, Laws, activities if enemies of the state, civil disturbance, riot, strikes, lockouts, transport delays and/or accidents. The Company shall have the right to omit the period of such force majeure all or any portion of the quantity deliverable during such period, but shall deliver the goods thereafter as and when circumstances permit.

8. WARRANTIES

   1. The Company gives no warranties of any nature in respect of the goods, other than those warranties as set out in the Dealer Agreement. The Company shall not be liable for any loss of profits, consequential, special, contingent or other damage or loss which may have allegedly been suffered by the Dealer and/or Client or may have resulted from any delay in the delivery of goods or from any failure by the Company to perform any of its obligations arising out of any order on the Online Order System, or under any other contract or otherwise.

9. DOMICILIUM CITANDI ET EXECUTANDI

   1. The Dealer hereby chooses domicilium citandi et executandi at the address nominated by the Dealer during registration on the Online Order System in respect of any matter arising out of or resulting from any Order placed on the Online Order System.

   2. Any notice which may be required to be given to a Party to this Agreement shall be sent to such Party’s address as set out above or duly altered address from time to time, and shall:

      1. be delivered by hand, in which event it shall be deemed to have been received on the date of delivery;

      2. be sent by prepaid registered post, in which event it shall be deemed to have been received on the 5th (fifth) Business day after posting;

      3. if transmitted to the e-mail address or any new e-mail address which may be notified, in writing, by the relevant Party to the other of them, in which event it shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the first business day after the date of transmission.

   3. Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one of the Parties from another including by way of facsimile transmission shall be adequate written notice or communication to such Party.

10. BREACH

    1. Should the Dealer commit a breach of this Agreement and fail and/or refuse to rectify that breach within 7 (Seven) days after receipt of a written notice from the Company, calling upon the Dealer to rectify that breach, the Company shall be entitled, without prejudice to any other of his rights, to forthwith cancel this Agreement with immediate effect by written notice to the Dealer.

    2. Should the Dealer commit a breach of this Agreement which breach brings the good name of the Company into disrepute and/or the Dealer’s conduct is in conflict with the company image of the Company, in such instances the Company shall be entitled to cancel this Agreement with immediate effect without the need for compliance with the procedure as set out in Clause 12.1 above and to claim damages, including consequential damages from the Dealer.

    3. Furthermore, should:

       1. the Dealer (or any of the Dealer’s sureties) be de-registered, wound-up, liquidated or placed in judicial management, placed under business rescue whether provisionally or finally and whether voluntarily or compulsorily or any application for the above be made in respect of the Dealer or any one or more of the Dealer’s sureties; or

       2. the Dealer commits any act of insolvency; or

       3. the Dealer compromises or attempts to compromise with its creditors generally; or

       4. any Court giving a final judgment for the repayment of monies against the Dealer and should such judgment not be satisfied, or an application for rescission filed, by the Dealer within 30 (Thirty) days after such judgment has come to the knowledge of the Dealer; or

       5. any of the assets of the Dealer be attached pursuant to any writ of execution and should the Dealer fail to procure that such assets are released from such attachment within 30 (Thirty) days after the attachment thereof;

       6. in the event that summons is issued or other legal process initiated against the Dealer or any one or more of the directors of the Dealer;

       then, and in any such event the Company shall be entitled, without prejudice to the Company’s other rights in law, to cancel this Agreement, to claim immediate specific performance of all of the Dealer’s obligations whether or not due for performance (all of which will forthwith be due, owing and payable) or as otherwise provided for in this Clause.

    4. The Dealer consents to the Jurisdiction of the Magistrates’ Court for the purpose of any action instituted against it upon or arising out of or in connection with any order on the Online Order System notwithstanding the fact that by virtue of the amount or relief claimed the said action would otherwise not be within the jurisdiction of the Magistrates Court.

    5. Should the Company institute legal proceedings against the Dealer relating to and/or arising out of any order on the Online Ordre System, the Dealer shall be liable for the Company’s costs on a scale as between attorney and own client, payable on written demand from the Company.

11. INDEMNITIES

    1. The Dealer indemnifies and shall keep the Company indemnified at all times against all direct and/or consequential losses sustained by the Company and/or any third party in consequence of:

    2. any –

       1. loss of or damage to property;

       2. breach of a statutory duty arising under any applicable Law;

       3. claim for or in respect of the death, illness and/or personal injury of any individual; or

       4. other claim, action, charge, cost, demand or expense,

       (including, without limitation, any legal fees or costs) arising in connection with the performance or non-performance of any of the Dealer’s obligations, save to the extent caused by the gross negligence or wilful misconduct of the Company or by a breach by the Company of an express provision of this Agreement; or

12. MISCELLANEOUS

    1. ENTIRE CONTRACT
       

       This Agreement contains all the express provisions agreed on by the Parties relating to the subject matter of this Agreement and the Parties waive their right to rely on any express provisions not contained in this Agreement.

    2. VARIATION AND CANCELLATION
       

       No agreement adding to, varying or cancelling this Agreement shall be effective unless reduced to writing and signed by or on behalf of all the Parties.

    3. WAIVER
       

       No waiver by a Party of any right under this Agreement shall be effective unless reduced to writing and signed by or on behalf of such Party.

    4. INDULGENCES
       

       No indulgences granted by a Party shall constitute a waiver or abandonment of any of the Party’s rights under this Agreement; accordingly, that Party shall not be precluded, as a consequence of having granted such indulgence, from exercising any rights against any other Party which may have arisen in the past or which may arise in the future.

    5. CESSION
       

       Except as specifically contemplated in this Agreement, no Party may cede any rights nor delegate any obligations in terms of this Agreement without the prior written consent of the other Parties. The Dealer and Client consent to the Company ceding and/or delegating its rights and/or obligations in terms of this Agreement to any third party whatsoever

    6. COSTS
       

       Any costs, including attorney and own Importer costs, incurred by the Company arising out of the provisions of this Agreement shall be borne by the Dealer.

    7. NO REPRESENTATIONS
       

       Neither Party may rely on any representations which allegedly induced that Party to enter into this Agreement, unless the representation is recorded in this Agreement.

    8. JURISDICTION
       

       Any Party shall be entitled to institute any legal proceedings which may arise out of or in connection with this Agreement in the Magistrates’ Court of South Africa to which jurisdiction the Parties hereby consent.

    9. SCHEDULES AND ANNEXURES
       

       All schedules and annexures to this Agreement shall be deemed to be incorporated in and form part of this Agreement.

    10. COUNTERPARTS
        

        This Agreement shall be capable of execution in counterparts (including faxed and/or emailed counterparts) and by different Parties hereto in separate counterparts, all of which so executed shall be deemed to be original and all of which taken together shall constitute one and the same Agreement.