The Advance Pools Web Site (“the Web Site”) comprised of various Web pages operated by Advance Pools CC (registration number 2006/115264/23) (“Advance Pools”), having its principal place of business at 28 Electron Road, Blackheath, Cape Town.
Advance Pools may at any time modify the Terms and your use of the Web Site will be subject to the Terms in force at the time of your use.
The Web Site may contain links to other Web Sites (“Linked Sites”). The Linked Sites are not under the control of Advance Pools and Advance Pools is not responsible for the contents of any Linked Site and use or reliance on any Linked Site is undertaken at your own risk. When visiting Linked Sites you must refer to that Linked Site’s terms and conditions of use. Advance Pools is not responsible for webcasting or any other form of transmission received from any Linked Site. Advance Pools is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Advance Pools of any Linked Site or any association with its operator.
NO UNLAWFUL OR PROHIBITED USE
You undertake that you will not use the Web Site for any purpose that is unlawful or illegal, or contrary to the Terms. In addition, you may not use the Web Site in any manner which may damage, disable, overburden, or impair the Web Site or interfere with any party’s use and enjoyment thereof.
MATERIALS PROVIDED BY YOU
Advance Pools does not claim ownership of any materials you provide on the Web Site or post, upload, input or submit to the Web Site or its associated services (collectively “Submissions”). However, by doing so, you grant Advance Pools permission to use your Submissions in the conduct of its business including, without limitation, the right to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submissions; and to publish your name in connection therewith. No compensation will be paid for any such use. You warrant that all your Submissions are owned or controlled by you and that any such use by Advance Pools is permitted. Advance Pools may remove any Submission at any time in Advance Pools’s sole discretion.
COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
Copyright and all intellectual property rights in all materials, text, drawings and data made available by Advance Pools on the Web Site are owned by Advance Pools alternatively Advance Pools is the lawful user thereof and is protected by both South African and international intellectual property laws. Accordingly, any unauthorised copying, reproduction, retransmission, distribution, dissemination, sale, publication, broadcast or other circulation or exploitation or use of such materials or any part thereof will constitute an infringement of such copyright and other intellectual property rights.
All trademarks, names, logos and service marks (collectively “trademarks”) displayed on the Web Site are protected registered or unregistered trademarks of Advance Pools. Nothing contained on the Web Site is to be construed as granting you any licence or right to use any trademarks for any reason whatsoever.
Advance Pools makes no warranties, representations, statements or guarantees (whether express, implied in law or otherwise) regarding the Web Site and any of the information contained on or referenced by the Web Site including without limitation about the suitability, reliability, availability of any products or services. Accordingly the Web Site is made available and the information is provided to you on an “as is” basis.
Advance Pools shall not be responsible for and disclaims all liability for any loss, liability, damage (whether direct, indirect or consequential), personal injury or expense of any nature whatsoever which might be suffered by you or any third party as a result of or attributable (directly or indirectly) to your access and use of the Web Site or any inability to access or use the Web Site or any functionality thereof or that of any Linked Site.
Advance Pools reserves the right, in its sole discretion, to terminate or restrict your access to the Web Site and the related services or any portion thereof at any time, without notice.
The Web Site is controlled, operated and administered by Advance Pools from its aforesaid offices within the Republic of South Africa. These terms shall be governed by the laws of the Republic of South Africa and you consent to the exclusive jurisdiction of the High Court of South Africa in the event of any dispute arising in connection with the Terms or any matter relating to or in connection therewith.
These Terms constitute the entire agreement between Advance Pools and you in relation to the subject matter hereof.
If you need to contact Advance Pools for purposes relating to these Terms, please use the following e-mail address: [email protected]
These Terms were most recently updated on 03 June 2021
GENERAL TERMS AND CONDITIONS
1 “These terms shall apply in respect of each and every contract for the sale of Goods, unless specifically agreed otherwise between the” Parties in writing.
2 “The provisions of this document shall overrule any terms of contract of the Purchaser, unless it is specifically otherwise agreed between” the Parties in writing.
3 “The Seller may agree to a specific contract on special terms set out in the order for such contract, and in the event of any inconsistency” ‘between the provisions of this document and any such special terms, the special terms shall prevail.”
4.1 “Unless the context indicates otherwise, the following terms or expressions shall have the meanings set out hereunder:”
4.1.1 “The Seller”” means Advance Pools (Pty) Ltd. and all of its divisions and/or trading entities”
4.1.2 “The Purchaser” means the Applicant described in this credit application form.”
4.1.3 “The Parties” means the Seller and the Purchaser collectively.”
4.1.4 “The Contract” means each individual transaction concluded between the Parties in terms of these terms.”
4.1.5 “The Goods” means the subject matter of the contract.”
4.2 The head notes and preamble in these conditions are for reference purposes only and shall not in any way affect the construction or interpretation of anything herein contained.
4.3 Words signifying the singular number shall include the plural and vice versa and words importing the masculine gender shall include the feminine gender and neuter
5 GRANT OF CREDIT
5.1 “The granting, refusal or withdrawal of credit facilities, including the extent and nature of such facilities and the payment in terms thereof’ shall at all times be at the sole discretion of the Seller who may withdraw same at any time without any prior notice to the purchaser
6 PAYMENT TERMS
6.1 Payment shall be made in respect of:
6.1.1 “a credit account, not more than 30 days nett from date of statement; and”
6.1.2 “cash and “”C.O.D.”” accounts, on receipt of the Goods by the Purchaser”
6.2 “Payment shall not be set off against or withheld on account of any counter-claim of the Purchaser, unless same is acknowledged by the” Seller in writing.
6.3 “Should the Purchaser fail to make payment in full on due date, it shall be obliged to pay interest on overdue amounts at the rate of 2%” above the prime overdraft rate charged by the Seller’s bankers from time to time.
6.4 “The Purchaser further agrees that in the event of its default in any respect whatsoever toward the Seller, the Seller shall be entitled to” “place the Purchaser on a” “stop supply”‘ without further notice to the Purchaser, notwithstanding that the Purchaser may have placed an” order for the supply of Goods prior to the stop supply date.
6.5 “In the event of the Purchaser tendering a cheque or any other negotionable instrument, then payment will only deemed to have been made” once the said cheque or negotiable instrument has been received by the Seller and thereafter met by the relevant bank or paying authority.
6.6 “All payments made to the Seller, shall be made at the address of the Seller set out on the face hereof or at such other address as the” Seller may from time to time designate in writing.
6.7 “Goods returned without the written consent of the Seller will not be accepted for credit. The Seller may, at its option, elect to accept the” “return of the Goods, in which event the Seller shall levy a handling fee equivalent to 10% of the selling price of the returned Goods.”
6.8 “Any promissory notes, bill of exchange or any other negotiable instrument received from the Seller by the Purchaser shall not constitute a” novation of the debt for which it was given.
7.1 The purchase price of the Goods is strictly nett and shall not be subject to any discount whatsoever unless as may be specifically agreed to in writing between the Parties. Prices are per unit and are payable in South African currency unless otherwise expressly stated.
7.2 The price of Goods shall be the price quoted in the Seller’s official price list ruling for such Goods at the date on which they were delivered to the Purchaser.
7.3 “Unless stated otherwise, prices quoted shall be exclusive of VAT.”
8 INCORRECT DELIVERIES
8.1 “Unless the Seller receives notice within 14 days of the date of dispatch of the statement, the account shall be deemed to be in order and” the Purchaser shall be deemed to have received delivery of each and every item appearing on such statement.
8.2 “In the case of delivery by carrier, insurance coverage with the carrier is the responsibility of the Purchaser.”
8.3 Delivery dates are based on the Seller’s prevailing stock situation and are subject to change and to the Purchaser carrying out all “its obligations which obligations include the supplying of all the necessary information to carry out the order being received timeously,” “from the Purchaser. Irrespective of the date stipulated for delivery, the Purchaser records that such data shall not be of the essence of “the contract. Consequently, the failure by the Seller to deliver in terms of the Contract, shall not entitled the Purchaser to cancel the” “Contract or any part thereof or to claim any loss or damages, whether consequential or otherwise, in consequence thereof. The Seller” “shall, however, make every endeavour to effect delivery timeously.”
9 RESERVATION OF OWNERSHIP
9.1 “Notwithstanding that all risks in and to all Goods sold by the Seller to the Purchaser will pass on delivery, ownership in all Goods sold and” delivered shall remain vested in the Seller until the full purchase consideration in respect thereof shall have been paid.
10.1 Delivery shall be completed when the Goods are pointed out to the Purchaser or its agent at the Seller’s premises and before loading commences.
10.2 “No claim of whatsoever nature shall lie against the Seller for Goods lost or damaged in transit, save where the Seller’s own vehicles are” employed.
10.3 “Where an outside transporter is engaged such transport shall be deemed to be the agent of the Purchaser, notwithstanding the fact that” the Seller may appoint such transport and/or pay such transporters charges.
10.4 “No claims in respect of Goods delivered by the Seller to the Purchaser shall be entertained by the Seller, unless such claims are” submitted by the Purchaser to the Seller in writing within 24 hours of receipt of such Goods.
11.1 The Seller shall not be liable for any consequential damages caused by faulty materials or defective workmanship or for any other reason whatsoever and the Purchaser hereby indemnifies the Seller against claims of any nature whatsoever.
11.2 All Goods are manufactured in accordance with the Seller’s principle standards of quality and are intended for use as set out in the Seller’s products/installation manual and for no other purpose whatsoever.
12 SECURITY BY PURCHASER
12.1 “If required by the Seller, the Purchaser shall provide a surety or sureties who shall be subject to the approval of the Seller, and shall” “execute (if two or more, jointly and severally) a guarantee on such terms and conditions as the Seller shall determine for the performance” “of all the Purchaser’s obligations and such guarantee shall be binding notwithstanding any variations, alterations, or extensions of time” “as may be made, given, conceded or agreed to in terms of these general conditions or in terms of any other agreement. The expense” “of procuring, preparing, completing and stamping such instrument shall be paid by the Purchaser.”
12.2 If the surety / is referred to in clause 11.1 above shall not be duly furnished to the Seller by the Purchaser within 7 days after being “requested so to do, the Seller may at its sole option and without prejudice to any rights which it may have by notice in writing to the” “Purchaser, terminate this and all agreements existing between the Purchaser and the Seller.”
13 VICARIOUS LIABILITY
13.1 “The Purchaser shall be responsible for and shall be bound by all acts and omissions of any of its employees, agents or servants in the” course and scope of their employment with the Purchaser in respect of any contraventions or implementation of any of the terms and” conditions and provisions of these general conditions. All such acts and omissions by such employees, agents and servants shall be” deemed to have been committed or omitted within the course and scope of their employment or mandate with the Purchaser unless the contrary is proved.
14 SALE OF BUSINESS AND LIABILITY OF THE SELLER
14.1 The Purchaser hereby undertakes that in the event of the Purchaser’s business being sold or in the event of the Purchaser being a “company, upon the sale of shares of the controlling interest in the company, or in the event of the Purchaser being a close corporation” “upon the sale of members interest of the controlling member in the close corporation, to immediately in writing advise the Seller thereof” and the Purchaser shall in any event remain responsible for all Goods ordered in the name of the business until such time as the written notice referred to above has been given and receipt thereof acknowledged by the Seller.
15 TELE SALES
15.1 Oral orders or order per telephone or telefax are executed at the Purchaser’s sole risk. Such orders must be confirmed in writing failing which no responsibility for errors will be accepted by the Seller.
16.1 “Notwithstanding any other provision of these conditions, the Purchaser shall have committed a breach if:”
16.1.1 he fails to pay on time any amount payable in terms hereof;
16.1.2 he commits a breach of any other terms of these conditions and fail to remedy such breach on 7 days notice;
16.1.3 so consistently breaches the conditions of sale (whether by non-payment or non-compliance) that no further notice is necessary;
16.1.4 “if the Purchaser is an individual, dies or if a juristic person, is provisionally or finally sequestrated or surrenders his estate;”
16.1.5 “or if the Purchaser be a partnership, the partnership is terminated or dissolved or provisionally or finally sequestrated or being a company” “or close corporation, is placed under provisional or final order of liquidation or judicial management;”
16.1.6 the Purchaser compromises or attempts to compromise generally with any of the Purchaser’s creditors;
16.2 “In the event of the Purchaser committing a breach of these conditions of sale, then the Seller shall be entitled, at its option, in addition to” and without prejudice to any rights or remedies it might have against the Purchaser to:
16.2.1 “Claim immediate payment of all amounts owing by the Purchaser to the Seller, irrespective of whether or not such amounts are then due;”
16.2.2 Terminate any agreement between the Parties summarily without notice to the Purchaser and to claim damages;
16.2.3 “Terminate such agreement summarily without notice to the Purchaser, take possession of all Goods delivered by the Seller to the” “Purchaser and which are not yet paid for, retain all payments already made by the Purchaser and claim as liquidated damages payment” of the difference between the balance outstanding and the value of the said returned Goods;
16.3 “Should the Seller proceed in terms of clause 15 herein-above, then the Purchaser shall on demand deliver to the Seller either at the” “premises of the Purchaser or at an address nominated by the Seller, all Goods not yet paid for, forthwith.”
16.4 A certificate signed by a director for the time being of the Seller setting out the amount owing by the Purchaser shall be sufficient and satisfactory proof of the amount owing by the Purchaser to the Seller for the purposes of an Application for Provisional Sentence or Summary Judgement or for any legal proceedings or for any claim whatsoever and the Purchaser hereby acknowledges itself to be truly and lawfully indebted to the Seller in the said sum.
17.1 The Seller shall be entitled to charge the Purchaser interest at the compound rate of 2% per annum above the prime overdraft rate charged “by the Seller’s bankers to the Seller from time to time on all amounts outstanding in excess of 30 days from due date, provided, however, “that nothing herein contained shall be interpreted as a waiver by the Seller of its right to demand payment on due date.
17.2 Stock returned in lieu of monies outstanding shall result in a seller charging the purchaser a 10% handling fee.
18 CONSENT TO JURISDICTION
18.1 “Should the Purchaser be in breach of any of its obligations in terms of these conditions of sale, the Seller shall be entitled to forthwith” “institute action against the Purchaser in any competent Court of law. In this regard, the Purchaser hereby consents to the jurisdiction of “the Magistrate’s Court in terms of Section 45 of Act 32 of 1944 as amended, notwithstanding that the amount claimed from the Purchaser” by the Seller may exceed the jurisdiction of the Magistrate’s Court.
18.2 “Should any legal proceedings be instituted in terms of clause 15 above, the Purchaser hereby indemnifies the Seller against all costs” incurred to the Seller by its attorneys. Such costs to be on the attorney and own client scale and furthermore all collection commission.
19.1 The address of the Purchaser reflected on the Application for credit is chosen by the Purchaser as its domicilium citandi et executandi “for all purposes hereunder, including the service of all legal and other processes.”
20 INVALIDITY OF ANY OF THE TERMS AND CONDITIONS
20.1 If any of the terms and conditions herein contained shall be invalid the same shall be excusable and shall not invalidate the remainder of the contract.
21.1 “The Seller shall be entitled to cede to any holding, subsidiary or affiliated company or business any of its rights to any agreement” existing between the Purchaser and the Seller or to any rights arising out of the sale of any Goods by the Seller to the Purchaser or arising in any other way whatsoever without the consent of the Purchaser.
21.2 The Purchaser shall not be entitled to cede its rights or delegate its obligations under this Application without the prior written consent of the Seller.
22 VIS MAJOR
22.1 The failure of the Seller to perform in terms of this agreement shall be excused to the extent that such failure is caused by an event of “Vis Major. For the purposes of this agreement, “”vis major means supervening possibility of performance caused by an event or’ “occurrence which is beyond the reasonable control of the Party affected by it. In the event of vis major, the Parties shall negotiate in good” faith to mitigate the adverse effects on both of them.
23.1 These conditions constitutes the whole and entire agreement between the Parties. Any previous conditions or agreements in conflict “with the provisions herein contained are hereby cancelled and there are no agreements, representations or warranties between them” other than those specifically set forth herein.
23.2 No indulgence on the part of any Party in exercising any right conferred upon such Party in terms of these conditions shall constitute a “waiver of such right, nor shall any single or partial exercise of any right preclude any other or future exercise thereof or the exercise of any” other right under these conditions.
23.3 “No addition to, alteration of, amendment or consensual cancellation of these terms and conditions shall be of any force or effect unless the” “same shall be confirmed in writing and signed by both parties, and then such addition, alteration, amendment or cancellation shall be” effective only in their specific instance and for the purpose and to the extent for which it was made or given.
23.4 These terms and conditions shall be in all respect governed by and construed in accordance with the laws of the Republic of South Africa.
23.5 “No warranties, representations or guarantees have been made by the Seller or on its behalf which may have induced the Purchaser” to sign this document.