THE OAKS COLLECTIVE
STANDARD TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES
1 IMPORTANT NOTICE
1.1 These Terms and Conditions apply to clients of Oaks Collective, some of which/who may qualify as consumers in terms of the Consumer Protection Act, No. 68 of 2008, as amended, replaced, or re-enacted from time to time (“Consumer Protection Act”).
1.2 These Terms and Conditions contain provisions that appear in similar text and style to this clause 1 and which –
1.2.1 may limit the risk or liability of Oaks Collective; and/or
1.2.2 may create risk or liability for the Client; and/or
1.2.3 may compel the Client to indemnify Oaks Collective; and/or
1.2.4 serve as an acknowledgement and acceptance, by the Client, of a fact.
1.3 Your attention is drawn to these Terms and Conditions because they are important and should be carefully noted.
1.4 If there is any provision in these Terms and Conditions that you do not understand, it is your responsibility to ask Oaks Collective to explain it to you before Accepting the Quotation.
2.1 For the purpose of these Terms and Conditions, the following words and expressions shall have the following meanings assigned to them and cognate expressions shall bear corresponding meanings (unless the context indicates otherwise) –
2.1.1 “Application Form” shall mean the written client information schedule or application form containing, inter alia, the particulars of the Client;
2.1.2 “Client” shall mean the person listed in the Application Form and/or Quotation, contracting with Oaks Collective for the provision of Services;
2.1.3 “Intellectual Property Rights” shall mean all intellectual property rights of, and/or intellectual property protections afforded to, Oaks Collective, including all patents, rights in inventions, rights in designs, trade marks, trade and business names and all associated goodwill, rights to sue for passing off or for unlawful competition, copyright, moral rights and related rights, domain names, rights in information (including know how and trade secrets) and all other similar or equivalent rights subsisting now or in the future in any part of the world, in each case whether registered or unregistered and including all applications for and renewals or extensions of, such rights for their full term, and “Intellectual Property” shall bear a corresponding meaning;
2.1.4 “Oaks Collective” shall mean The Oaks Collective Proprietary Limited, registration number 2000/007085/07, a company duly incorporated in the Republic of South Africa;
2.1.5 “Parties” shall mean Oaks Collective and the Client, and “Party” shall mean either one of them, depending on the context;
2.1.6 “Prime Rate” shall mean the publicly quoted basic rate of interest, compounded monthly in arrears and calculated on a 365 day year irrespective of whether or not the year is a leap year, from time to time published by Oaks Collective’ bankers as being its prime overdraft rate, as certified by any representative of that bank whose appointment and designation it will not be necessary to verify or prove;
2.1.7 “Quotation” shall mean the written quotation provided to and Accepted by the Client for provision of Services, and to which these Terms and Conditions are attached;
2.1.8 “Services” shall mean the services listed in the Quotation and provided to the Client by Oaks Collective;
2.1.9 “Term” shall mean the period as indicated on the Quotation for the provision of Services; and
2.1.10 “Terms and Conditions” shall mean these standard terms and conditions for the provision of Services, as amended from time to time in writing and signed by both Parties.
2.2 In these Terms and Conditions –
2.2.1 part, clause and sub-clause headings are for convenience only and are not to be used in its interpretation;
2.2.2 an expression which denotes: (i) any gender includes the other genders; (ii) a natural person includes a juristic person and vice versa; and (iii) the singular includes the plural and vice versa;
2.2.3 a reference to a consecutive series of 2 (two) or more clauses is deemed to be inclusive of both the first and last-mentioned clauses;
2.2.4 the words “include” and “including” (or any derivatives thereof) mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” (or any derivatives thereof) followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it;
2.2.5 any reference to “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 gazetted by the Government of the Republic of South Africa from time to time;
2.2.6 “person” shall mean any person, company, close corporation, trust, partnership, or other entity whether or not having separate legal personality;
2.2.7 “laws” shall mean all constitutions; statutes; regulations; by-laws; codes; ordinances; decrees; rules; judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, orders, decisions, rulings, or awards; policies; voluntary restraints; guidelines; directives; compliance notices; abatement notices; agreements with, requirements of, or instructions by any governmental body; and the common law, and “law” shall have a similar meaning;
2.2.8 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;
2.2.9 any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in this clause 2 or elsewhere in these Terms and Conditions, shall be given effect to as if it were a substantive provision in the body of the Terms and Conditions;
2.2.10 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 these Terms and Conditions;
2.2.11 a reference to any statutory enactment shall be construed as a reference to that enactment as at the date that these Terms and Conditions come into force and effect and as amended or substituted from time to time;
2.2.12 the rule of construction that these Terms and Conditions shall be interpreted against the Party responsible for the drafting of the Terms and Conditions, shall not apply; and
2.2.13 the use of any expression in these Terms and Conditions covering a process available under South African law, such as winding-up, shall, if either of the Parties is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such other jurisdiction.
3.1 Oaks Collective is a creative agency that specialises in branding, video, design, and other creative media.
4 CONSUMER PROTECTION ACT
4.1 To the extent only that these Terms and Conditions are regulated by or subject to the Consumer Protection Act –
4.1.1 no provision of these Terms and Conditions is intended to contravene the applicable provisions of the Consumer Protection Act; and
4.1.2 all provisions of these Terms and Conditions shall be deemed to be qualified to the extent required in order to ensure compliance with the applicable provisions of the Consumer Protection Act and these Terms and Conditions must be interpreted and applied accordingly.
4.2 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 the Client or Oaks Collective in terms of the Consumer Protection Act.
5 CLIENT ENGAGEMENT AND TERMS AND CONDITIONS
5.1 Prior to the provision of Services, the Client shall be required to complete the Application Form. It is specifically recorded herein that the Application Form incorporates, by reference, these Terms and Conditions, and draws to the Client’s attention that any provision of Services by Oaks Collective is subject to, and shall be governed by, these Terms and Conditions.
5.2 Oaks Collective shall provide the Client with the Quotation in respect of the provision of Services. The Quotation shall indicate the description of the Services the Client requires, as well as the Charges in respect thereof.
5.3 The Quotation shall be valid for a period of 7 (seven) days from the date on which it is issued by Oaks Collective to the Client, where after the Quotation shall automatically lapse and be of no further force or effect whatsoever.
5.4 The Client shall, in accepting the Quotation, sign the Quotation and fax and/or email such signed Quotation to Oaks Collective, together with an order number, prior to the expiration of the aforesaid 7 (seven) day period, provided that Oaks Collective shall be entitled, but not obliged, to accept a signed Quotation lodged after the aforesaid 7 (seven) day period, in which event, a contract for the provision of Services shall be formed in accordance with clause 5.7.
5.5 Notwithstanding clauses 5.2 to 5.4, Oaks Collective may, in its sole and absolute discretion and on a case-by-case basis, accept a verbal acceptance of a Quotation by the Client or an expression of intent (including any payment in terms of 6.3 or 6.4, or the Client continuing to engage Oaks Collective in the provision of Services) by the Client, and where such verbal acceptance or expression of intent is accepted by Oaks Collective and Oaks Collective provides the Services, such will be deemed conclusive evidence of the Client’s acceptance of these Terms and Conditions.
5.6 In the event that Oaks Collective accepts such verbal acceptance of the Quotation or expression of intent in terms of clause 5.5, the Client shall be required to provide written acceptance of the Quotation within 7 (seven) days after such verbal acceptance or expression of intent, or such other period stipulated by Oaks Collective. Failure to provide timeous written acceptance of a Quotation may result in the withdrawal or cancellation by Oaks Collective of any order or Quotation without further notice to the Client (however, such failure shall not prejudice or detract from the Client’s acceptance of these Terms and Conditions, as contemplated in clause 5.5). Should Oaks Collective have incurred or become liable for any costs and expenses as a result of any verbal acceptance or expression of intent that is accepted the Client shall reimburse Oaks Collective.
5.7 A contract for the provision of Services shall be formed when the Client accepts the Quotation in accordance with the provisions of clause 5.4 or 5.5 above (however subject to clause 5.6) (herein defined as “Accepting” and “Acceptance”).
5.8 The Terms and Conditions shall come into force and effect on the date of Acceptance of the Quotation and shall endure until all the obligations of the Client in terms these Terms and Conditions have been fully discharged (unless otherwise terminated in terms hereof).
5.9 Accordingly, the cancellation of the provision of Services, or expiration of the Term, shall not affect the provisions of these Terms and Conditions, which will remain binding on the Parties.
5.10 Notwithstanding any other provision in these Terms and Conditions, either Party may, at any time, subject to the provisions of clause 7, cancel provision of Services contemplated in these Terms and Conditions by giving the other Party –
5.10.1 1 (one) month’s prior written notice, in the event that the Term is equal to or exceeds a period of 1 (one) month; or
5.10.2 10 (ten) business days’ prior written notice, in the event that the Term is less than a period of 1 (one) month.
6 CHARGES AND PAYMENT TERMS
6.1 The Services shall be provided at the fees listed on Quotation (“Charges”).
6.2 The Charges shall be in South African Rands and shall include value-
added tax in terms of the Value-Added Tax Act, No. 89 of 1991 (“VAT”),
unless otherwise indicated.
6.3 Notwithstanding the provisions of clause 6.6, the Charges shall become due and payable as follows –
6.3.1 50% (fifty percent) of the Charges, on Acceptance of the Quotation;
6.3.2 the remainder of the Charges on delivery of product
unless otherwise arranged between the Parties and agreed in writing by Oaks Collective.
6.4 Oaks Collective may, however, at its sole and absolute discretion, call for the Client to pay a deposit of 100% (one hundred percent) of the Charges to Oaks Collective on or before a specified date to be nominated by Oaks Collective. The aforementioned deposit shall become due and payable on such specified date.
6.5 The Charges shall be paid in South African Rands of immediately available and freely transferrable funds and shall be free of any deductions or set-off whatsoever.
6.6 Oaks Collective shall, upon Acceptance of the Quotation, issue a tax invoice to the Client in respect of the provision of Services. The aforesaid invoice shall include the Charges, the Services to be provided, VAT and all other charges payable by the Client.
6.7 Oaks Collective shall be entitled to charge interest on all amounts due and owing by the Client to Oaks Collective at the Prime Rate plus 2% (two percent), calculated daily in arrears from the date it falls due until the date of payment (both dates inclusive).
6.8. All payments made by the Client to Oaks Collective shall, unless otherwise agreed by Oaks Collective in writing, be allocated, to the extent relevant, first to costs, including all legal costs, then to interest, and finally towards the reduction of any outstanding amounts and charges.
6.9. The Client acknowledges and accepts that Oaks Collective shall be under no obligation to provide, or continue to provide, the Services to the Client should the Charges not have been paid by the Client to Oaks Collective as contemplated in this clause 6.
7 CANCELLATION CHARGES AND REFUNDS
7.1 If in the event that the Client cancels or terminates the provision of Services governed in terms of these Terms and Conditions prior to expiration of the Term, the following cancellation charges shall apply and shall become immediately due and payable by the Client to Oaks Collective –
All outstanding amounts owed in respect of the agreement plus 10% of the amount that would have been due and payable for the remainder of the Term.
7.2 The Parties acknowledge and accepts that the cancellation charges in clause 7.1 are reasonable in the circumstances, and that they are based on the following factors taken into regard in the determination of same –
7.2.1 the Term;
7.2.2 the total amount of the Charges;
7.2.3 the nature of the Services;
7.2.4 the length of notice of cancellation provided by the Client; and 7.2.5 the general practice of the industry in question.
7.3. No Charges paid shall be refundable.
8 PROVISION OF SERVICES
The Client hereby appoints Oaks Collective to provide the Services to the Client for the duration of the Term, and Oaks Collective hereby accepts such appointment, subject to the provisions contained in these Terms and Conditions.
9 VARIATION TO THE SCOPE OF SERVICES
Where there is an intended variation to the scope of Services, Oaks Collective shall record the details of such variation (as well as any increase in Charges (if any) and payment terms in respect thereof) in a Quotation to be signed by a duly authorised representative of the Client. Any such variation to the scope of Services shall only be binding on the Parties once so recorded in the Quotation by Oaks Collective and signed by a duly authorised representative of the Client.
10 DELIVERY TIME
10.1 Oaks Collective shall specify the relevant delivery time in respect of any
Service requested by a Client on the Quotation relevant to such Service.
10.2 Where the Client requests that Services be performed on an urgent basis and/or within a timeframe which is shorter than Oaks Collective’s standard delivery time as provided for on the Quotation, Oaks Collective reserves the right to charge additional fees.
11 OVERTIME AND ANCILLARY CHARGES
11.1 Notwithstanding the provisions of clauses 6 and 9, Oaks Collective reserves the right to charge the Client –
11.1.1 overtime; and
11.1.2 costs and expenses associated with transport, airfare, accommodation, meals and subsistence and travel allowances (“Ancillary Charges”),
in the event that the scope of Services as stated in the Quotation are exceeded in the provision thereof.
11.2 Overtime shall generally be charged by Oaks Collective at 1.5 (one point five) times the relevant hourly rates, and Ancillary Charges shall be charged at the actual costs and expenses incurred by Oaks Collective. Where overtime is performed on a Sunday or a public holiday, overtime shall be charged by Oaks Collective at double the relevant hourly rates.
11.3 All overtime and Ancillary Charges shall be included in the final tax invoice to be provided by Oaks Collective to the Client.
12 CLIENT OBLIGATIONS
12.1 In addition to all other obligations of the Client as set out in these Terms and Conditions, the Client shall provide Oaks Collective with all such information and assistance as Oaks Collective may require from time to time to perform its obligations under these Terms and Conditions.
12.2. Notwithstanding any other term contained herein, Oaks Collective will not be in breach of these Terms and Conditions to the extent its failure to perform or delay or defect in performance of its obligations under these Terms and Conditions arises as a result of –
12.2.1 any breach by the Client of its obligations contained herein;
12.2.2 Oaks Collective relying on any information or guidance provided by the Client; or
12.2.3 Oaks Collective complying with any instruction or request by the Client or one of its employees.
13 CERTIFICATE OF BALANCE
The Parties hereby acknowledge and agree that a certificate of balance signed by a manager or director of Oaks Collective, or his/her delegate duly authorised thereto in writing (as the case may be), shall be prima facie proof of the amount(s) plus interest and any costs, due at any time by the Client to Oaks Collective.
14 NON-SOLICITATION OF EMPLOYEES
The Client shall not, at any time during the Term or within 12 (twelve) months
from the expiry or termination of these Terms and Conditions, solicit,
undertake to engage, employ or utilise, in any capacity, the services of or 17.1.4 introduce to another employer either temporarily or permanently, directly or
indirectly, any employee, officer or director of Oaks Collective, either as
employee, agent, independent contractor or any other form of employment or engagement.
15.1 Subject to clause 15.2, each Party undertakes to keep confidential and not to disclose to any third party any and all information given by one Party to the other pursuant to and in respect of these Terms and Conditions.
15.2 Clause 15.1 shall not apply to information which is publicly known or becomes publicly known through no unauthorised act of the recipient Party, rightfully received by the recipient Party from a third party, required to be disclosed pursuant to a requirement of a governmental agency or any applicable law, so long as the Party required to release the information provides the disclosing Party with prior notice of such disclosure (if possible), or the information is publicly disclosed with the disclosing Party’s prior written consent.
16 INTELLECTUAL PROPERTY
16.1 Except for those materials provided by the Client, the Client acknowledges
and accepts that all right, title, and interest in and to the Intellectual
Property Rights relating to a deliverable (output of the Services) vest, and
shall at all times vest, in Oaks Collective (and, to the extent that these do
not vest by operation of law, it is hereby assigned). The Client shall not at
any time dispute the validity or enforceability of the Intellectual Property
Rights or execute any act or do something which in any manner impairs
or could impair such rights. Provided that the Client makes payment of the
Charges, the Client will have an exclusive license to use the relevant deliverables.
16.2 Furthermore, the Client shall not use in any manner any Intellectual Property without the prior written consent of Oaks Collective. Should Oaks Collective consent to the use of the Intellectual Property in terms of this clause 16.2, this shall not prejudice or detract from the provisions of clause 16.1.
17 FORCE MAJEURE
17.1 Should either Party be prevented or delayed from being able to perform an obligation under in terms of these Terms and Conditions, where such event would constitute force majeure, such as wars, insurrections, strikes, acts of God, governmental actions or controls, water restrictions or other causes beyond the control of a Party, then such failure shall not be regarded as a breach of its obligations in terms hereof provided that –
17.1.1 the Party hereto subject to force majeure shall give prompt notice to the other Party hereto of the nature and estimated duration of the force majeure concerned;
17.1.2 the Parties shall co-operate and collaborate together and use all reasonable efforts to overcome the force majeure concerned and/or nullify its effect;
17.1.3 any suspension of performance within the provisions of the above clauses shall be limited to the period during which such inability shall exist, and the Term shall be interrupted by the period of such suspension.
17.2 If the inability referred to in clause 17.1 substantially or permanently prevents the continued performance by either Party of its obligations in terms of these Terms and Conditions for a period exceeding 10 (ten) consecutive days, then either Party shall be entitled, by giving notice in writing, to terminate the provision of Services in respect of any of its obligations still to be performed hereunder and these Terms and Conditions shall terminate 7 (seven) days after giving of such notice. The provisions of this clause 17.2 shall in no way prejudice Oaks Collective’ rights in terms of clauses 6 and 7 herein.
18 WARRANTIES, EXCLUSION OF LIABILITY AND INDEMNITY
18.1 The Client hereby represents and warrants to and in favour of Oaks Collective that –
18.1.1 it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to be bound by these Terms and Conditions;
18.1.2 these Terms and Conditions constitute an agreement valid and binding on it and enforceable against it in accordance with its terms;
18.1.3 the execution of the Application Form and/or Quotation, and the performance of its obligations in these Terms and Conditions, does not and shall not –
184.108.40.206 contravene any law or regulation to which the Client is subject;
220.127.116.11 contravene any provision of the Client’s constitutional documents; or
18.104.22.168 conflict with or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it; and
18.1.4 to the best of its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all of its obligations in these Terms and Conditions;
18.1.5 it is entering into this contract for the provision of Services as principal (and not as agent or in any other capacity);
18.1.6 the natural person who signs and executes the Application Form and/or the Quotation on its behalf is validly and duly authorised to do so;
18.1.7 no other party is acting as a fiduciary for it; and
18.1.8 it is not relying upon any statement or representation by or on behalf of any other Party, except those expressly set forth in these Terms and Conditions.
18.2 Each of the representations and warranties given by the Client in terms of clause 18.1 shall –
18.2.1 be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in these Terms and Conditions;
18.2.2 continue and remain in force notwithstanding the completion of any or all the transactions contemplated in these Terms and Conditions; and
18.2.3. prima facie be deemed to be material and to be a material representation inducing Oaks Collective to provide the Services to the Client.
18.3 Oaks Collective makes no warranty, undertaking or representation, whether express or implied, in respect of or in connection with the provision of Services. The Client acknowledges and accepts that Oaks Collective is not in any way bound by any oral statement, representation, guarantee, promise, undertaking, inducement or otherwise which may have been made at any time by any director, manager, employee or any other person acting or purporting to act for and on behalf of Oaks Collective, whether negligently or otherwise, unless such statements, representations, guarantees, promises, undertakings, warranties or inducements are supplied or made in writing by a duly authorised representative of Oaks Collective.
18.4. In no event shall either Party be liable for any losses, damages or injuries (whether direct, indirect, consequential, special or otherwise) which may be sustained by the other Party or a third party for any reason whatsoever. In particular, Oaks Collective shall not be liable for any liabilities, costs or damages arising fromOaks Collective inability to perform under these Terms and Conditions due to a force majeure event referred to in clause 16.
18.5 The Client hereby holds harmless and indemnifies Oaks Collective from all liabilities, costs and damages which Oaks Collective may directly sustain caused by or arising from any intentional or negligent acts or omissions of the Client (or any of its employees, directors, officers or agents acting in the course of their employment or mandate with the Client) in terms of these Terms and Conditions, including the utilisation of the Services.
19 SUB-CONTRACTING, CESSION AND ASSIGNMENT
19.1 Oaks Collective shall be entitled to sub-contract any of its obligations in terms of these Terms and Conditions to any third party.
19.2 The Client shall not cede, transfer, or assign and of its rights, title or obligations granted herein without the prior written consent of Oaks Collective. Oaks Collective, on the other hand, shall be entitled to cede, transfer and assign its rights, title and obligations granted herein without the prior written consent of the Client.
20 EVENTS OF DEFAULT
20.1 If –
20.1.1 the Client commits a breach of any of the terms or conditions contained herein (including a failure by the Client to pay punctually any amount due and payable to Oaks Collective), and, if such breach is capable of remedy, fails to remedy that breach within 10 (ten) business days of receipt of demand from the Oaks Collective; or
20.1.2 the Client commits an act or omission that would constitute an act of insolvency, within the meaning of section 8 of the Insolvency Act, No 24 of 1936, as amended, replaced or re-enacted from time to time (or any similar act or omission within the meaning of any replacement legislation); or
20.1.3 the Client enters into any compromise, composition, or arrangement with any one or more of its creditors; or
20.1.4 any step (including an application or a petition to court, proposal or convening of a meeting) is taken with a view to a moratorium or a composition or similar arrangement with any of the Client’s creditors; or
20.1.5 a meeting of the Client’s shareholders or directors is convened for the purpose of considering a resolution for the voluntary liquidation of the Client or to place it into business rescue, curatorship or similar disability; or
20.1.6 an order for the Client’s winding-up, dissolution, reorganisation, business rescue, curatorship, or similar disability (by way of a scheme of arrangement or otherwise) is made; or
20.1.7 the Client allows any judgment by court of law to be taken against it to remain unsatisfied for 7 (seven) days from the date of such judgment,
then, and in such event, an “Event of Default” shall be deemed to have been committed.
20.2. Upon the happening of an Event of Default, Oaks Collective shall be entitled, in addition to and without prejudice to any other remedy which it may have in terms of these Terms and Conditions or in law, to accelerate payment of any outstanding amount or cancel the provision of Services forthwith in writing, and without prejudice to any other claim which Oaks Collective may have in law to claim such damages as it may have suffered.
20.3 If Oaks Collective cancels or purports to cancel the provision of Services then, notwithstanding anything to the contrary herein, all outstanding amounts due and payable by the Client to Oaks Collective shall immediately be due and payable by the Client to Oaks Collective (including cancellation charges in terms of clause 7 and interest charged in terms of clause 6.6).
21 GOOD FAITH AND REPUTATION
21.1 The Parties undertake to observe the utmost good faith, and they warrant in their dealings with each other that they will neither do anything nor refrain from doing anything which might prejudice or detract from the rights of the other Party.
21.2 The Client undertakes at all times to ensure that nothing which may be detrimental to the image, good name and reputation of Oaks Collective is done or published by the Client, and furthermore to take all reasonable steps to avoid any unfavourable publicity for Oaks Collective, and shall procure that all of its employees, directors, officers and agents do the same.
22 RELATIONSHIP BETWEEN THE PARTIES
Nothing in these Terms and Conditions, and no action taken by the Parties in connection with same, shall create or constitute a contract or relationship of agency, representation, employment or partnership between the Parties or, save as expressly provided otherwise in these Terms and Conditions, give either Party authority to act as the agent, employer, employee or partner of or in the name of or on behalf of the other Party or to bind the other Party or to hold itself out as being entitled to do so.
23 APPLICABLE LAWS AND JURISDICTION
23.1 These Terms and Conditions shall in all respects be governed by and interpreted in accordance with the laws of the Republic of South Africa.
23.2 In the event of any dispute arising between the Parties, each Party hereby consents to the non-exclusive jurisdiction of the High Court of the Republic of South Africa (South Gauteng Division, Johannesburg) notwithstanding that the quantum in the action or proceedings may otherwise fall below the monetary jurisdiction of that court.
24 LEGAL COSTS
Each Party (“Innocent Party”) agrees that the other Party (“Defaulting Party”) shall be liable for all legal costs incurred by the Innocent Party, on the scale of an attorney and client, including collection commission and other charges, and/or damages suffered by the Innocent Party as a result of the breach by the Defaulting Party of any of the provisions contained in these Terms and Conditions.
25 DOMICILIUM CITANDI ET EXECUTANDI
25.1 The Parties hereby choose as their respective domicilia citandi et executandi the following physical addresses, and for the purposes of giving or sending any notice provided for or required under these Terms and Conditions, the said physical addresses as well as the following email addresses –
The Oaks Collective:
Physical Address: Menlyn Woods Office Park, 291 Sprite Avenue, Faerie Glen
Email Address: [email protected]
For the attention of: Flaps van der Merwe, CEO, Oaks Collective.
Physical Address: Physical address recorded on the Application Form, or Invoice.
Email Address: Email address recorded in the Application Form , or Invoice. .
For the attention of: (The contact person recorded in the Application Form, or Invoice.).
25.2 A Party may change its domicilium citandi et executandi to another physical address in the Republic of South Africa (provided that such physical address is not a post office box or poste restante), or may change its address for the purposes of notices to any other physical address or email address by written notice to the other Party to that effect. Such change of address will be effective 5 (five) business days after receipt of the notice of the change.
25.3 Notices may be sent either by hand, registered post or via email and must be in English. All notices sent –
25.3.1 by hand, will be deemed to have been received on the date of delivery;
25.3.2 by registered post, will be deemed to have been received within 10 (ten) days after the date of posting; and
25.3.3 by email before 17h00 on a business day will be deemed to have been received on the date on which the email is successfully transmitted. All emails sent after 17h00 shall be deemed to have been received on the following business day.
26.1 These Terms and Conditions constitute the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of these Terms and Conditions not incorporated herein shall be binding on either of the Parties.
26.2 These Terms and Conditions supersede and replace any and all agreements between the Parties (and other persons, as may be applicable) and undertakings given to or on behalf of the Parties (and other persons, as may be applicable) in relation to the subject matter hereof.
26.3 No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions contained herein shall be of any force or effect unless in writing and signed by the Parties.
26.4 Each provision contained in these Terms and Conditions shall be severable and distinct from one another and if at any time any one or more of such provisions is or becomes invalid or unenforceable in any jurisdiction, the validity and enforceability of each of the remaining provisions herein shall not in any way be affected or impaired thereby in that jurisdiction, nor shall the validity or enforceability of any of the provisions herein be affected or impaired thereby in any other jurisdiction. The Parties declare that it is their intention that these Terms and Conditions would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.
26.5 The expiration or termination of these Terms and Conditions shall not affect such of the provisions contained in these Terms and Conditions that 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.