TERMS & CONDITIONS OF ALPHA FOTODIENS CC T/A ALPHA PROMOTIONS
Prelude:
Agreement and terms and conditions between readers and users of the website and Clients’s of ALPHA PROMOTIONS, whether in person or by contract to third party as the relationship may dictate at the time.
It is hereby agreed that the users and Clients’s of ALPHA PROMOTIONS (herein after referred to as “the parties”) will read the terms and conditions into all quotations, work done, third party relationships and Client and ALPHA PROMOTIONS relationship in general.
Definitions:
I. Artwork shall mean any sample, specimen, sketch, design,layout, photograph, slide any proof, pull or other work designed, created or altered by ALPHA PROMOTIONS or on which ALPHA PROMOTIONS applied its creative ideas or invested its intellectual design ability whether such artwork was in existence or altered. Collectively all and any work may resort under the term “design”.
II. Day shall mean work days from Monday to Friday.
III. Products shall mean the products agreed upon and quoted for and shall include all artwork and reproductions thereof.
Iv. Design shall mean any concept or draft artwork.
Deposits:
i. Full payment of the total quotation shall be paid on acceptance of this quotation.
ii. ALPHA PROMOTIONS reserves the right to claim additional payments from The Client on written notice to cover expenses such as design costs, branding costs and transport (delivery) .
iii. Quotations will be valid for 30 (thirty) days from the date of the quotation only.
iv. All quotations are VAT exclusive unless clearly stated on the quotation.
Initial designs
i. Approval of designs will be done when The Client is furnished with proofs of the designs. The Client shall approve the designs by affixing his signature to the proof thus indicating that he accepts the designs and shall return the designs to ALPHA PROMOTIONS.
ii. After approval of the design by The Client, The Client shall have no claim against ALPHA PROMOTIONS for errors on the signed design.
iii. If The Client wishes to amend the design or artwork for other reasons than errors made by the printer and/or designer, The Client shall be held liable for the cost thereof.
iv. ALPHA PROMOTIONS shall not be held liable for any damage or loss suffered if The Client’s instructions were to proceed without the submission of the design.
Release
i. The Client shall collect the products from ALPHA PROMOTIONS and The Client shall not refuse or delay the collection of the products. If The Client fails to collect the products within 10 (ten) days after ALPHA PROMOTIONS informed The Client to collect, The Client shall bear storage cost from the first day that the products were available for collection at a rate of R50.00 per day, which must be paid by The Client to ALPHA PROMOTIONS on demand.
ii. On receipt of the products it shall be deemed that The Client inspected the products and the products are in good order if The Client or his representative accepts the products.
iii. No products shall be returned to ALPHA PROMOTIONS after the delivery date without the written consent of ALPHA PROMOTIONS.
iv. The products shall be delivered to The Client if The Client so desires, provided that The Client shall bear the cost of the delivery and indemnifies ALPHA PROMOTIONS from any loss incurred during the transportation of the products.
Remuneration
i. Payment of the outstanding balance shall be effected by payment before delivery unless the parties have agreed otherwise in writing.
ii. Any amount not paid by The Client on the due date, shall bear interest at a rate equal to 12% from the due date being date of demand to date of final payment.
Intellectual Property
I. Ownership in the intellectual property of the artwork and/or products remains vested in ALPHA PROMOTIONS. Copyright of all artwork designs and/or concepts are reserved by ALPHA PROMOTIONS.
II. ALPHA PROMOTIONS reserves the right to use the artwork or products for portfolio purposes.
III. Materials, files and computer files used in the creation of the final artwork or products shall remain the property of ALPHA PROMOTIONS.
Iv. No person shall be authorised to use any product or artwork or any of the products if the full outstanding amount has not been paid.
v. Where The Client requires the ownership of the intellectual property, the parties shall negotiate a price for the intellectual property and the right title and interest to the intellectual property shall only be assigned or transferred to The Client as soon as:
• written assignment agreement for the transfer of the intellectual property has been drafted and signed by both parties, the cost of which will be for the account of The Client;
• the full contract price inclusive of all disbursements is paid by The Client and verified by ALPHA PROMOTIONS.
Cancellation
I. ALPHA PROMOTIONS reserves its rights to cancel the project at any time without prejudice to its rights if The Client fails to pay any amount due or perform any other act contra to the agreement between the parties whether in writing or verbal.
II. Upon cancellation all amounts owed to ALPHA PROMOTIONS by The Client becomes due and payable immediately and ALPHA PROMOTIONS may take possession of and retain any items of The Client that are under the control of ALPHA PROMOTIONS and without prejudice to any of ALPHA PROMOTIONS’ other rights to retain such products until payment has been effected.
III. Every quotation is subject to the cancellation by ALPHA PROMOTIONS due to force majeure / vis major / casus fortuitus on the part of ALPHA PROMOTIONS including (without restricting this clause to these instances) inability to secure labour, electricity, materials or supplies, civil disturbance, riot, state of emergency, strike, labour disputes, fire or flood.
Iv. Every quotation is subject to the cancellation by ALPHA PROMOTIONS if The Client breaches any terms of this agreement or makes any attempt of compromise, liquidation, sequestration, termination or if judgement is recorded against The Client or any of its principals.
v. If The Client rejects a design or cancels the agreement before or on the date of the submission of the design, The Client shall forfeit the deposit and shall be liable for any additional labour and expenses incurred by ALPHA PROMOTIONS to date of cancellation.
vI. If The Client cancels the agreement after date of submission of the design, The Client shall be held liable for the full outstanding amount together with any other cost incurred in the collection thereof.
Costs not initially quoted for
If The Client requires any additional work to be performed by ALPHA PROMOTIONS, which costs are not set out in the quotation, The Client shall be invoiced therefore accordingly.
Indemnification
I. The Client indemnifies ALPHA PROMOTIONS against the following or any consequential damages flowing from:
a. Any claims, costs and/or expenses of whatsoever nature arising out of any legal action against The Client for services rendered, artwork created and products sold and delivered by ALPHA PROMOTIONS to The Client;
b. Any loss of The Client’s design and/or materials submitted to ALPHA PROMOTIONS;
c. The missing of project deadlines which shall include penalties imposed upon The Client;
d. Loss of information if the information was stored at ALPHA PROMOTIONS.
Breach of Contract
II. Where any party commits a breach of the terms and conditions, the aggrieved party shall deliver a notice on the defaulting party at the defaulting party’s given address, requiring the defaulting party to remedy the breach within a period of fourteen days from date of receipt of the notice. If the defaulting party fails to remedy the breach within the period of ten days, the aggrieved party may cancel the agreement and claim damages or claim specific performance or take any other legal action against the defaulting party.
III. Should The Client commit any breach, the total amount outstanding on the account (as quoted) will immediately become due and payable notwithstanding the fact that the portion of the amount would not be owed in accordance with the agreed terms.
Iv. In the event of ALPHA PROMOTIONS instructing its attorneys to take legal action in terms of this agreement, all legal fees as between attorney and The Client, charges and tracing agent fees, shall be borne by the Client.
v. All payments received shall firstly be allocated towards attorney fees, other charges, interest and thereafter capital.
Jurisdiction and Locus Standi
I. The Client hereby consents to the jurisdiction of the Magistrate’s Court in respect of all legal proceedings ALPHA PROMOTIONS connected with this agreement, notwithstanding that the value of the matter in dispute might exceed the jurisdiction of the Magistrate’s Court.
II. Notwithstanding the above, ALPHA PROMOTIONS will be entitled to institute action in the High Court having jurisdiction.
III. Should ALPHA PROMOTIONS so choose to use Arbitration as a forum, The Client hereby consents to any official forum of arbitration pointed out by ALPHA PROMOTIONS.
Domicillium Address
I. For all purposes under this agreement including the giving of any notice, the service of any proceedings ALPHA PROMOTIONS and for all other purposes arising from this agreement, The Client hereby chooses its domicilium citandi et executandi at the chosen address of The Client stipulated on the face of the quotation.
II. Any party may by notice to the other party change its domicilium citandi et executandi to another physical address and/or fax number in the Republic of South Africa, provided that such change shall become effective only on the 7th day after receipt of the notice.
III. Notwithstanding anything to the contrary herein contained,the written notice or communication actually received by a party shall bean adequate written notice or communication, notwithstanding that it was not sent to or delivered at the chosen domicilium citandi et executandi.
Waver
No indulgence, latitude, extension of time or omission by ALPHA PROMOTIONS shall constitute a waiver by ALPHA PROMOTIONS of any of its rights under this agreement and shall not amount in an appropriate instance, to a condonation by ALPHA PROMOTIONS of any act or omission on the part of The Client as such and The Client’s conduct shall under no circumstances whatsoever give rise to a defence of estoppel. The acceptance
by ALPHA PROMOTIONS of any payment by The Client after cancellation of this agreement shall not be deemed to be a waiver of ALPHA PROMOTIONS’ rights or a novation.
Entire Agreement
The parties agree that this agreement is the entire agreement between them. No variation thereof or waiver of any rights, obligations or consensual cancellation hereof shall be of force or effect unless reduced to writing and signed by both parties.
Incorporation
Terms and conditions referred to in this document will be applicable to the relationship between ALPHA PROMOTIONS and The Client in whatsoever other capacity the parties may here and after relate to each other, with the understanding that the principles laid down in this agreement will as a rule, unless pertinently stated otherwise, supersede all other agreements and relationships between the parties, with special reference to quotations and invoices and the burden of proof will in all instances be on The Client and not on ALPHA PROMOTIONS.
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