Standard Trading Terms and Conditions of 5th Dimension Marketing (Pty) Ltd
1. DEFINITIONS
1.1) "The parties" means 5th Dimension Marketing (Pty) Ltd (hereinafter referred to as
5th DIMENSION) and the Client (hereinafter referred to as the Client);
1.2) "Contract" means any contract or agreement arising out of the acceptance of any offer
whether the contract arises out of:
1.2.1) An offer made by 5th DIMENSION and accepted by the Client;
1.2.2) An offer made by the Client and accepted by 5th DIMENSION.
2. GENERAL
2.1) These terms and conditions shall apply to a contract in terms of which 5th DIMENSION and
the Client agree, in so far as they are applicable and relevant
2.2) Applicability and relevancy of these terms and conditions shall be agreed upon by 5th
DIMENSION and the Client upon commencement of a contract
2.3) The contract shall accordingly come into existence upon acceptance of an offer by the
relevant party
2.4) Such acceptance shall be conveyed in writing and signed by the parties hereto or their duly
authorised representatives
2.5) No alteration or variation of these terms and conditions shall be of any force or effect unless
and until recorded in writing and signed by the parties hereto.
3. PURCHASE PRICE AND PAYMENT
3.1) The purchase price payable by the Client for work by 5th DIMENSION shall be agreed upon
in writing prior to the commencement of any work
3.2) 5th DIMENSION reserves the right to vary its prices in accordance with standard fluctuation,
without prior notice to the Client
3.3) The Client will be invoiced for work undertaken by 5th DIMENSION and the Client undertakes
to pay 5th DIMENSION the amounts contained in such invoices within the stipulated period of
time mentioned therein
3.4) The Client will not be entitled to withhold payment of any amount payable to 5th DIMENSION
to satisfy any claim of the Client arising from this or any other agreement between the Client
and 5th DIMENSION, nor will the Client be entitled to set off such an amount against the
amount payable to 5th DIMENSION in terms of this or any other agreement.
4. RETENTION OF OWNERSHIP
4.1) Ownership in respect of any products, advice or services sold in terms of the contract shall
remain vested with 5th DIMENSION and shall not pass to the Client.
5. SUPPLIERS
5.1) The Client is prohibited from contacting suppliers of 5th DIMENSION directly.
6. DELIVERY
6.1) All dates and times stipulated by 5th DIMENSION for delivery are intended as an estimateonly and
5th DIMENSION shall not be liable in any way whatsoever for any loss or damage whatsoever
(including consequential loss) which may result from non-delivery of the product, advice or services
by the date or time so stipulated nor shall any such delay confer upon the Client any right to
rescind the contract.
7. DISCLAIMER
7.1) 5th DIMENSION shall not be liable for any loss of profit or any loss or damage, direct or
indirect, consequential or otherwise, sustained by the Client arising out of any negligence
on the part of the management of 5th DIMENSION, its staff, contractors or agents. Such
damages include but are not limited to data loss, time loss, revenue loss or loss of items
stored by 5th Dimension on behalf of the Client.
7.2) 5th DIMENSION shall not be liable for any loss or damage, direct or indirect, consequential
or otherwise, sustained by the Client as a result of the use of a product or acceptance of
advice or services.
8. DEFAULT
8.1) Should the Client
8.1.1) Fail to make payment upon due date of any amount due and owing, or
8.1.2) Commit any other breach of the terms of any contract and remain in default of
such breach after the receipt of 14 (fourteen) days' written notice from
5th DIMENSION to the Client calling upon the Client to remedy such breach, or
8.1.3) Being any individual, die or his estate be provisionally or finally sequestrated or
surrendered, or
8.1.4) Being a partnership, the partnership be terminated, or
8.1.5) Being a Company, be placed under provisional or final order of liquidation or judicial
management, or
8.1.6) Being a close corporation be placed under provisional or final order of liquidation or
judicial management, or
8.1.7) Compromise or attempt to compromise generally with the Client's creditors, or
8.1.8) Have any judgments granted against him/it -
THEN
8.1.9) 5th DIMENSION shall be entitled, at its option and without prejudice to any other right which
it may have including the right to claim damages arising out of the breach or the
termination of the contract:
8.1.9.1) To declare all amounts owing by the Client to be immediately due and payable;
8.1.9.2) To suspend the carrying out of any of it's then uncompleted obligations until payment is
made;
8.1.9.3) To terminate any credit facilities granted to the Client
8.2) 5th DIMENSION’S rights in terms of this clause shall not be exhaustive and shall be in
addition to any other right it may have whether under any contract, or at common law or
otherwise.
8.3) No relaxation which 5th DIMENSION may have permitted on any occasion regard to the
carrying out of the Customer's obligations shall prejudice or be regarded as a waiver of
5th DIMENSION’S rights to enforce those obligations on any subsequent occasion.
9. NOTICES
9.1) Any written notices in respect of this contract shall be delivered by prepaid registered post or
by hand
9.2) Notices delivered shall be deemed to have been received;
9.2.1) On the fifth business day after posting, if delivered by prepaid registered Post;
9.2.2) On the day of delivery if delivered by hand on a business day.
10. CESSION AND ASSIGNMENT
10.1) The Client shall not be entitled to cede any of its rights or obligations in terms of the
contract of sale without the prior written consent of 5th DIMENSION.
11. DOMICILIUM
11.1) The Client chooses domicilium citandi et executandi at the last address given by the
Client to 5th DIMENSION in respect of work carried out or at such address as it may advise
5th DIMENSION from time to time.
12. JURISDICTION
12.1) In terms of section 45 of the Magistrate's Court act of 1944, the Client hereby consents to
the jurisdiction of the Magistrate's Court having jurisdiction in terms of Section 28 of the said
Act in respect of any action to be instituted against the Client by 5th DIMENSION in
terms of the contract. It shall nevertheless be entirely within the discretion of
5th DIMENSION as to whether to proceed against the Customer in such Magistrate's Court
or any other court having jurisdiction.
13. COSTS
13.1) 5th DIMENSION shall be entitled to recover all charges of whatsoever nature which may be
incurred by 5th DIMENSION in enforcing any of the provisions of this contract including, |
without limitation, by virtue of the foregoing, all legal costs including costs as between
attorney and client, collection, commission and tracing agent fees.
14. APPLICABLE LAW
14.1) This and any other contract entered into between 5th DIMENSION and the Client will be
governed and interpreted in accordance with the laws of the Republic of South Africa.
15. PROTECTION
15.1) 5th DIMENSION shall not disclose any confidential information or data to any employees
or contractors of 5th DIMENSION, except those employees and contractors who are
required to have the confidential information in order to perform their job duties in
connection with the limited purposes of the relevant agreement.
16. FAILURE TO FULFILL OBLIGATIONS
16.1) 5th DIMENSION shall not be liable for failure to fulfill its obligations herein or for delays
due to causes beyond its reasonable control, including, but not limited to,
acts of God, natural disasters, acts or omissions of other parties, acts or omissions of
civil or military authority, Government priorities, changes in law, material shortages,
fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism,
delays in transportation or inability to obtain labour or materials through its regular
sources. 5th DIMENSION'S time for performance of any such obligation shall be extended
for the time period of such delay or may, at its discretion, cancel the contract without
prejudice to 5th DIMENSIONS rights to recover the monies owing to 5th DIMENSION, as
at the date of suspension or cancellation.