For the purposes of this agreement-
1.1 Application form means the application form attached hereto which application form shall include, but not be limited to, the details of the customer and associated requirements of the customer in respect of the products and shall incorporate the terms and conditions contained in this agreement;
1.2 Customer means the entity identified as such in the application form attached hereto;
1.3 PRINTED PENS CC means Printed Pens cc Registration Number: CK2008/057300/23, from here on referred to as PRINTED PENS;
1.4 Order means a written order placed by the customer for the supply of the products from time to time by PRINTED PENS;
1.5 Products means the goods ordered by the customer as per the customers specifications and designed and distributed by PRINTED PENS;
1.6 Surety means the duly authorised representative of the customer as identified in the application form who will stand surety for the obligations of the customer in terms of the provisions of this agreement;
1.7 Territory means the territory as defined in the application form.
2. ARTWORK and COLOUR VARIATIONS
2.1 All artwork and printing charges will be levied where necessary unless previously stipulated by us. In order to brand efficiently, it may be necessary to adjust or redraw the customers artwork. The customer will be advised of any such changes. No branding will take place until PRINTED PENS has received in writing the signed off approval of the artwork from the customer. In order to sign off the artwork PRINTED PENS will furnish the customer with an artwork approval form via e-mail, illustrating the appearance of the artwork on the customers chosen product. This must be checked thoroughly by the customer in respect of, inter alia, spelling, fonts, colours (stipulate pantones if you require them and they are not shown), sizes, etc and signed off. No work will commence until PRINTED PENS PROMOTIONS are in receipt of the duly completed signed off form. Paper work does on accation go missing. Please confirm that your signed off form has been received.
2.2 All positives, screens, plates and digitising remains the property of PRINTED PENS.
2.3 The customer understands that the branding of promotional products is not always permanent and may wear off over time.
2.4 Due to the variety of materials and the different branding processes utilized by PRINTED PENS and its suppliers, no guarantee will be given to march exact pantone numbers or colour samples provided by the customer. PRINTED PENS will match as closely as possible the colour references but cannot be held liable for any additional costs that may arise.
2.5 When placing your order we will redesign your logo for you to ensure that it is in the correct format and quality for reproduction. This service is free and includes 2 changes to your logo. Should you require more there is a small charge of R350 (ex VAT) per hour. If, once you are happy with your logo you would like a copy of the original logo file, redrawn by us, we are happy to supply this to you at a cost of R500 (ex VAT). It is the customers responsibility to ensure that any logos we redraw are correct.
3. ORDER OF THE PRODUCTS
3.1 The customer shall be entitled for the duration of this agreement to place orders for such number of units of the products as required by the customer and/or any of its customers from time to time. The customer acknowledges that it is its sole responsibility to determine that the products ordered are suitable for the purposes of the intended use of the products by the customer and/or its customers.
3.2 No order for any of the products shall be processed by PRINTED PENS until it has been received in writing. PRINTED PENS shall be entitled to reasonably refuse any order placed by the customer and shall under no circumstances be liable to the customer if for any reason PRINTED PENS refuses to accept, fails to deliver and/or fails to deliver timeously any order or part thereof placed with PRINTED PENS by the customer.
3.3 Delivery or lead time, as the case may be, are merely estimates and are not binding on PRINTED PENS.
3.4 All deliveries will be charged at the prevailing rates applying at the date of such delivery. Special express deliveries will be subject to additional charges and will be charged to the customer at the commercial rates applicable at that time.
3.5 Lead times will be deemed to commence on the date and time that PRINTED PENS receives in writing all signed off approval of the artwork, signed acceptance of the quote supplied and payment of the funds have been cleared.
3.6 Until such time as the customer has paid the fees referred to in clause 4 below in full in respect of each unit of the products ordered by the customer, the ownership shall remain vested in PRINTED PENS. The risk in and to the products shall pass from PRINTED PENS to the customer upon the date of delivery thereof by PRINTED PENS to the customer or their agent. Any delivery note or weigh bill (be it a copy or an original) signed by the customer or a third party engaged to transport the products shall be conclusive proof that delivery was made to the customer. Any third party engaged in transporting the goods shall be deemed to be the agent of the customer irrespective of which party gave instructions to or paid such third party.
3.7 At the customers request, PRINTED PENS will cause goods to be delivered to the customer via courier, which costs shall be debited to the customer and payable by the customer upon delivery of the goods. Should the customer require the goods to be insured, the customer will be liable for the payment of such insurance upon dispatch of the goods by PRINTED PENS CC. Requests to insure goods must be made in writing and accepted by PRINTED PENS
3.8 PRINTED PENS shall be entitled in its sole discretion to split the delivery of the products ordered in the quantities and on the dates it decides.
3.9 PRINTED PENS shall be deemed to have fulfilled our contract by delivery of a quantity within 5% plus or minus of the quantity of printed goods ordered and you will be charged at the contract rate for the quantity delivered.
3.10 The customer irrevocably authorises PRINTED PENS to enter the premises of the customer to repossess any products delivered and which have not been paid for by the customer. The customer indemnifies PRINTED PENS against any and all damages whatsoever relating to the removal of repossessed products and agrees to pay any and all costs associated with the repossession of the products.
4.1 The customer shall pay in cash the amount specified on the tax invoice issued by PRINTED PENS in respect of the supply of the products from time to time at the office of PRINTED PENS by payment -4.1.1 against delivery of the products; or
4.1.2 if the customer is a Credit Approved Customer, within the granted credit period as specified on the credit application after a tax invoice is issued by PRINTED PENS.
4.2 The customer hereby agrees that -
4.2.1 PRINTED PENS shall have the right, by written notice to the customer, at all times during the period of this agreement to vary the charges and prices payable by the customer to PRINTED PENS;
4.2.2 all payments to be made by the customer to PRINTED PENS shall be made free of deduction, set-off, bank charges or commission;
4.2.3 all amounts payable by the customer to PRINTED PENS are tax exclusive of value-added tax. In the event that the rate of value-added tax or such other similar tax be varied from time to time, the payments to be made by the customer to PRINTED PENS shall be adjusted accordingly;
4.2.4 a certificate under the signature of any manager or member of PRINTED PENS shall constitute prima facie proof of the amount of the indebtedness of the customer and/or the surety hereunder to PRINTED PENS at any time, including any interest, the rate of interest and the method of calculation thereof. It shall not be necessary to prove the appointment or signature of the manager or member signing any such certificate;
4.2.5 any amount which is not paid on due date as contemplated in terms of this agreement shall, without prejudice to any other rights which PRINTED PENS may have, bear a monthly interest at the prime overdraft lending rate of ABSA Bank Limited from time to time as certified by any manager of ABSA Bank Limited (whose appointment need not be verified and which certificate shall constitute prima facie proof thereof) plus 2% (two per centum), from due date to date of final payment;
4.2.6 the then prevailing rates of PRINTED PENS for any goods and/or services rendered by PRINTED PENS on a time and materials basis shall apply where no rate has been agreed in writing between the parties.
4.2.7 all quotations are valid for 7 (seven) days from the time of giving the quote, error and omissions excluded.
4.3 all prices on the website are subjuct to change at any time. We make all efforts to ensure that they are upto date but our numerous suppliers change their prices regaulry.
5. Payments to PRINTED PENS
5.1 Cheques: In the case of a cheque being deposited in to any of the four bank accounts.
5.2 Cash: With the exception of small sample orders we do not accept cash payments on our premises as it is a security risk.
5.3 EFT: This is our preferred method of payment. Please pay in to the correct bank account to ensure that the EFT is cleared immediately. Overseas payments take 4 to 7 days to clear.
5.4 Card Payments (Pending): We accept Mastercard / Visa and debit cards (No AMEX or Diners).
5.5 No orders will not be processed until the funds are cleared in the account.
6. Returns and Cancellations
6.1 All cancellations will be subject to a minimum cancellation and admin charge of 35%, together with the costs for all work completed to date of receipt by PRINTED PENS of a written cancellation from the customer.
6.2 Any orders not paid for within 10 working days of a Sales Order or Invoice being raised will be cancelled and subject the clause 6.1
6.3 Should the Customer be on account, no cancellation will be accepted one final approval of artwork has been received.
6.4 Collected stock may not be returned, unless approved in writing by management within 48 hours of collection, subject to a 35% handling and admin fee.
6.5 No stock on special, once collected, can be returned unless faulty.
6.6 Samples not returned in 5 working days will be charged for. All samples must be returned in original condition and in their original packaging. Any damage to the sample or packaging with result in you being invoiced for it.
6.7 Refunds will take unto 30 days once accepted.
6.8 Goods returned will be either replaced or a credit given at PRINTED PENSs discretion
6.9 No branded goods will be returnable if not branded by PRINTED PENS.
6.9.1 We have the right to dispose of returned stock in what ever manor we deem fit be it through sale, donation or any other means
7.1 The surety by virtue of its signature to the application form hereby binds itself as surety for and co-principal debtor in solidum with the customer for the due and punctual performance by the customer of all or any of its present and future obligations arising from this agreement including obligations arising from the breach or the termination of this agreement and/or any liability or losses incurred by or third party claims made against PRINTED PENS as a result of the customers failure to perform its obligations sufficiently or at all as set out in this agreement, and all associated costs and charges including all reasonable legal costs on the scale as between attorney and his own client.
7.2 This suretyship shall be in addition to and without prejudice to any other suretyship, guarantee, indemnity or security of whatsoever nature which PRINTED PENS holds or may obtain from or on behalf of the customer and shall remain in force as a continuing covering suretyship for the fulfillment by the customer of its obligations, notwithstanding any interim settlement of account and notwithstanding the legal incapacity or other legal disability of the surety.
7.3 The surety hereby expressly waives and renounces the benefits of excussion, division and cession of action and the exceptions non numeratae pecuniae, non causa debiti, revision of accounts, no value received, errore calculi and de duobus vel pluribus reis debendi in so far as each may be applicable and declares itself to be fully acquainted with the meaning and effect of those benefits and exceptions and to renunciation thereof.
8. LIABILITIES AND LIMITATIONS
8.1 The products shall be regarded as having been sold "voetstoot" without warranty against latent defects therein. Without derogating from the generality of the aforesaid, the products are guaranteed according to the manufacturer's product specific warranties only and all other guarantees and/or warranties, including but not limited to any common law guarantees, are hereby specifically excluded. All guarantees are immediately null and void should any products be tampered with and/or should the products be operated outside the specifications of the manufacturer from time to time in any manner whatsoever.
8.2 Once stock has been collected / delivered from or by PRINTED PENS, we have no control over it. All claims for defective and/or damaged products shall be submitted by the customer to PRINTED PENS within 24 (twenty four) hours of acceptance of receipt of the products by the customer as evidenced by a delivery note signed by the customer. The customers sole remedy will be limited exclusively to the replacement and/or correction of the non-conforming item of the products at the expense of PRINTED PENS, provided that PRINTED PENS shall be entitled to charge a 15% (fifteen per centum) handling charge which shall immediately become due and payable by the customer.
8.3 Neither the customer nor any other person shall have any claim against PRINTED PENS for any direct, consequential, incidental, indirect or special loss or damages including (without being limited to) business interruption, loss of business information, loss of data or other pecuniary loss, arising from the unavailability of, or interruption in the services, regardless of whether such claim is based on breach of contract, delict, breach of implied warranties or otherwise and even if the possibility of such loss or damages could have been foreseen.
8.4 In all cases (and excluding any liability which may not by law be excluded or limited), PRINTED PENSs total liability, whether in contract, negligence or otherwise, under or in connection with this agreement will not exceed in aggregate 100% (one hundred per centum) of the total fees received by PRINTED PENS with respect to the service giving rise to the liability during the 12 (twelve) month period prior to the last cause of action.
8.5 PRINTED PENS reserves the right to alter any details and/or design of products displayed on its website, electronic messaging and/or sales literature, and no warranty is given as to the accuracy thereof and no responsibility will be accepted for error or incorrect description and any resultant loss arising thereof.
The customer hereby unconditionally and irrevocably indemnifies PRINTED PENS and agrees to hold PRINTED PENS free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by PRINTED PENS or instituted against PRINTED PENS as a direct or indirect result of -
9.1 the customers use of the products;
9.2 the customers failure to comply with any provision of this agreement or any other requirements which PRINTED PENS may impose from time to time.
10. INTELLECTUAL PROPERTY
The customer acknowledges that any and all of the copyright, trademarks and all other intellectual property rights used or subsisting in or in connection with the products shall vest in and shall be the sole property of PRINTED PENS and the customer shall not during or at any time after the completion, expiry or termination of this agreement in any way question or dispute the ownership thereof.
All items illustrated on the website containing corporate logos or registered trademarks are shown for the purposes of illustrating PRINTED PENSs logo and print reproduction capabilities. The purchase of goods from PRINTED PENS in no way, shape or form grants you permission to reproduce logos, nor does it transfer, grant or lease ownership of any logos or trademarks to you or any third party.
In the event that -
11.1 the customer fails to effect payment of any amounts due to PRINTED PENS in terms of this agreement on due date;
11.2 there is any change in direct and/or indirect control, ownership or management of the customer;
11.3 either party commits a breach of any of the terms of this agreement and fails to remedy such breach within 7 (seven) days of receipt of written notice from the other party, then PRINTED PENS CC or the customer (the aggrieved party), as the case may be, shall be entitled without prejudice to any other remedies which the aggrieved party may have in law (including but not limited to specific performance) to cancel this agreement and claim any damages that the aggrieved party may have suffered.
11.4 Notwithstanding the amount which may at any time be owing by the customer to PRINTED PENS, the parties hereto consent, in terms of Section 45 of the Magistrates Court Act (32/1944) to the jurisdiction of the Magistrates Court having jurisdiction for the determination of any action or proceedings otherwise beyond the jurisdiction of the said court which may be brought by PRINTED PENS against the customer arising out of any transaction between the parties.
12. FORCE MAJEURE
If force majeure cause delays in or failure or partial failure of performance by a party of all or any of its obligations hereunder, this agreement, or as the case may be, the effected portion thereof, shall be suspended for the period during which the force majeure prevails, but if the force majeure affects any material part of the agreement only for a maximum period of 60 (sixty) days, then PRINTED PENS shall be entitled on 7 (seven) days written notice to the customer to cancel this agreement. For the purpose hereof, force majeure includes strikes, riots, lockouts, fire, floods, drought or any other cause beyond the control of the parties.
This document constitutes the sole record of the agreement between the parties in regard to the subject matter hereof and PRINTED PENS shall not be bound by any express, tacit or implied terms, representation, warranty promise or the like if not recorded herein.
13.1 Save as otherwise specifically provided herein, no addition, variation, or consensual cancellation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties.
13.2 No indulgence, which PRINTED PENS may grant to the customer, shall constitute a waiver of any of the rights of PRINTED PENS who shall not thereby be precluded from exercising any rights against the customer which may have arisen in the past or which might arise in the future.
13.3 These terms and conditions will be governed, construed and take effect in all respects in accordance with the laws of the Republic of South Africa and the parties hereby consent to the exclusive jurisdiction of the South African Courts.
13.4 The customer chooses as its domicilium citandi et executandi for all purposes arising from this agreement, the address set out in the application form and any notice given by PRINTED PENS to the customer at such address by prepaid registered post shall be deemed to have been received by the customer and brought to its notice -
13.4.1 on the 7th (seventh) day after the date of posting;
13.4.2 within 24 (twenty four) hours of being faxed to the customer;
13.4.3 on being delivered by hand to the customer or any representative of the customer.
13.5 The customer shall be liable for all costs as between attorney and own client, which are incurred by PRINTED PENS in the pursuance of its rights under this agreement. Such costs shall include the cost of tracing as well as collection commission.
13.6 The customer shall not be entitled to cede or assign this agreement or any of its rights under this agreement nor to delegate any obligation under this agreement to any party without the prior written consent of PRINTED PENS.
13.7 The invalidity of any part of this agreement will not affect the validity of any other part.
13.8 These terms and conditions apply to all orders and supersede all others. Receipt of acknowledgement of an order by the customer constitutes acceptance that these conditions are the only conditions that apply to the contract notwithstanding any purported terms put forward by the customer.