STANDARD TRADING TERMS AND CONDITIONS

All business undertaken by Frozen Drinks Africa (Pty) Ltd is subject to the following terms and conditions: –

1. For the purposes of the paragraphs set out below:

• “Owner” shall mean Frozen Drinks Africa (Pty);
• “Customer” shall mean the party reflected in the agreement and/or who receives the equipment;
• “Equipment” means the machines identified in the agreement and all accessories;
• “Designated location” shall mean the place reflected in the
• “Agreement” shall mean this contract between the owner and customer.
• The parties” shall mean the owner and customer collectively

2.  PERIOD

• The Owner shall Rent the goods for a minimum period of 12 months, subject to the terms and condition contained herein;
• The period of Rental shall commence on the date of delivery and shall terminate on demand as provided in Clause 14.
• Should the customer terminate the agreement within the 12-month period it shall be liable for the full outstanding rental for the balance of the 12-month period as set out on the front page above.

3.  DELIVERY AND CONNECTION

• The Owner shall at its own expense deliver and connect the equipment at the designated location;
• The Customer undertakes to maintain a constant supply of electricity to the equipment;
• The Customer undertakes to ensure that the equipment is constantly supplied with safe drinking water.

4.  USE OF EQUIPMENT

• The Customer shall use the equipment only for the purposes specified by the Owner in the operating specifications;
• The Customer acknowledges that it has read the Owner’s operating specifications a copy of which is delivered with the equipment and the customer acknowledges that it fully understands the operating procedures;
• The Customer undertakes to abide by the Owners operating specifications during the period that this agreement is of force and effect;
• Only those ingredients/products purchased from the Owner shall be used by the Customer in the operation of the equipment;
• The equipment may only be used by the Customer at the designated location. Any request to move the equipment shall be in writing relayed to the Owner who shall confirm such arrangements in writing as the Owner deems appropriate;

• The Owner shall have the sole discretion in determining whether the equipment is properly used in terms of the Owner’s operating specifications;
• The Customer acknowledges and agrees that the equipment is movable property and that it may be installed in certain designated locations and that notwithstanding any such installation it is the clear and express intention that the equipment remains the property of the Owner;
• The Customer will keep the equipment free from judicial attachment, hypothec or any other legal charge or process and will not without the written consent of the Owner encumber or in any way deal with the
• The parties specifically agree that in the event of the Customer failing to operate the equipment in terms of the Owner’s operating specifications the Customer shall be responsible for payment of the costs of restoring or repairing the equipment;
• The Customer shall permit the Owner’s authorised agents/officials to attend to the maintenance of the equipment at regular and reasonable
• The customer may not refuse the owner access to the equipment.
• The customer shall be liable for any damages caused to the supplier’s equipment while in its possession.

5.  MAINTENANCE OF THE EQUIPMENT

• The Owner shall use its best endeavours to affect all necessary repairs to the equipment to keep the equipment in good working order;
• Any alteration, repair or modification to the equipment by any person other than an authorised agent/official of the Owner shall render the Owner’s obligations to maintain the equipment null and void, the owner shall not be responsible for any loss or damage which may be suffered by the Customer in the event of the failure of the equipment or inability of                  the Owner to effect repairs.

• The Owners shall not be held responsible for any damage suffered by the customer because of faulty or defective equipment.

6.  MAINTENANCE OF STOCK

          The Customer shall always during the period of this agreement maintain the stock of the ingredients/products supplied by the Owner for the continued daily use of the equipment to the satisfaction of the owner.

7.  STIPULATED MINIMUM CONSUMPTION

          The Owner shall stipulate in writing the minimum consumption of the Owner’s ingredients/products to be purchased by the Customer on a monthly basis which consumption amount may be varied by the Owner in its absolute and sole discretion.

8.  INSURANCE

• The Customer shall insure the equipment for such value that the Owner may determine from time to time alternatively the replacement value thereof;
• The Customer will pay all insurance premiums punctually and comply strictly with all conditions of insurance;
• The Owner’s interest in the equipment will be noted in the insurance policy; The Customer is obliged to show proof of payment of all insurance premiums due in terms of this agreement on request by the Owner and produce a policy document if so required;

• In the event of the Customer failing to insure the equipment with effect from the delivery date the Owner shall be entitled to insure the equipment with an insurer of its choice and shall be entitled to the premiums paid from the Customer;
• The Customer shall notify the Owner of any change of the insurer of the equipment which notification shall be in writing and given to the Owner in terms of paragraph 19 hereof.

9.  TOTAL LOSS OF EQUIPMENT

• The Customer shall be responsible for the replacement of the equipment in the event of the total loss thereof for any reason whatsoever;
• The Customer acknowledges that the amount for which it shall be responsible in the event of total loss of the equipment shall be in the amount equal to the cost price of the equipment as at date of total loss thereof or, as at the date that the total loss comes to the attention of the Owner whichever date shall be sooner;

• In the event of the total loss of the equipment the cost price thereof shall be payable upon demand.

10.  OWNERSHIP

         Ownership in the equipment shall always vest in the Owner and at no time shall title to the equipment pass to the client.

11.  NOTIFICATION TO LANDLORD

• The Customer will advise the Owner in writing of the full name and address of the landlord where the goods are kept as well as the name and address of any subsequent landlord;
• The Customer is obliged to notify such landlord in writing of the Owner’s ownership of the equipment prior to the delivery thereof; 3 The Customer hereby agrees and undertakes to give its landlord written notice that the equipment belongs to the Owner and is not the Customer’s property and cannot be attached and/or sold in execution of any debt as between the landlord and the Customer.

12.  CERTIFICATE BY OWNER

          A certificate by the Owner or its duly authorised agent/official shall be prima facie proof of any amounts due by the Customer in terms of this agreement.

13.  BREACH

• Should the Customer : –

• fail to perform or observe any term or condition hereof;
• cease to carry on business at the designated location; 1.3 permit any act of insolvency, or being a natural person surrender his estate or be sequestrated or placed under judicial management whether personal or final;

• suffer any judgment by default to be entered against him and fail to take steps to rescind such judgment within seven (7) days of the debt coming to his knowledge or fail to satisfy such judgment within seven (7) days of the refusal of rescission thereof;
• abandon the goods;
• compromise with creditors or be party to an agreement;
• allow the goods to be seized under any legal process issued against him;
• permit a lien to be exercised over the equipment;
• do or suffer to be done, anything which may prejudice the Owner’s rights under this agreement;
• fail to pay for any ingredients/products supplied by the
• Use any other ingredients in the equipment other than that supplied by the owner.

• The Owner will be entitled in its election without prejudice to any of its other rights to: –

• cancel this agreement and take back possession of the equipment;

• In the event of the Owner cancelling this agreement for any reason whatsoever.

• all costs and disbursements including legal costs on an attorney/client scale incurred by the Owner: –

• in recovering possession of the goods;
• in tracing the Customer or the goods and/or;
• in collecting or endeavouring to collect the amounts due in terms hereof; shall be payable by the Customer on demand including collection commission, dismantling and removal charges, costs of repairing and restoring the goods to their former condition;

• Payment of interest, on any amount owing in terms hereof which is not paid on due date, shall be prime interest rate as stipulated by Absa Bank (your bank) from time to time, plus 5% from due date to date of payment.

14.  TERMINATION

• The Owner may terminate this agreement in the event of any breach or at any time on demand without prejudice to the Owner’s rights in law;

• In the event of termination of this agreement the Customer shall permit the Owner to remove its equipment from the designated location thereof on date of termination;
• The Customer may Terminate this agreement on giving the Owner 30 days’ notice in writing prior to the end of this agreement.

          On termination or cancellation of this agreement the equipment shall be returned to the Owner in good working condition. The Customer’s failure to return the equipment to the Owner in good working condition shall render the Customer liable for the costs of repairing or replacing the equipment.

15.  WAIVER/INDULGENCE/RELAXATION

          No relaxation or indulgence granted by the Owner to the Customer in regard to any of the terms and conditions hereof is deemed to be a waiver of any of the Owner’s rights nor is any such relaxation or indulgence deemed to be a novation of any of the terms and conditions of this agreement.

16.  ENTIRE AGREEMENT

         This agreement embodies the entire agreement between the parties and no variation or amendment thereof is of any force or effect unless agreed to in                 writing by both parties. The parties acknowledge that no representations or warranties other than those provided for herein were made by either party in                 connection with the equipment or any other matter included herein. 17. CESSION, ASSIGNMENT, POSSESSION

• The Customer may not cede or assign its rights or obligations in terms of this agreement without prior written consent of the Owner;
• The Customer waives all the benefits conferred upon him by the Prescription Act 68 of 1969, as amended and agrees that he is thereby precluded from pleading prescription (acquisitive or extinctive) as a defence against any claim of the Owner.

• The Customer may not part with the possession of the equipment without prior written consent of the Owner.

18.  JURISDICTION

• The parties’ consent to the jurisdiction of the Magistrate’s Court in respect of all legal proceedings connected with this agreement notwithstanding that the amount of the matter in dispute exceeds the Court’s jurisdiction;
• Notwithstanding the foregoing the Owner is entitled to institute proceedings against the Customer in the division of the High Court having jurisdiction in the matter.

19.  DOMICILIUM CITANDI ET EXECUTANDI

• The parties hereto choose as domicilium citandi et executandi for all notices and the service of all processes the addresses as reflected in the agreement;

• Notice of any change of address must be given in writing by the party concerned and delivered by hand or sent by registered mail or by facsimile to the other party. The address to notified then becomes the domicilium citandi et executandi;
• Any notice required to be given in terms of this agreement shall be given to the parties forwarded to the parties domicilium by hand delivery, registered mail or facsimile;
• A notice which is sent by prepaid or registered post in a correctly addressed envelope to the postal address specified above would deem to have been received unless the contrary is proved seven days from which it was posted;
• A notice which is delivered by hand to a responsible person during ordinary business hours at the above physical address will deem to have been received on the day of delivery;
• A telefax sent to the telefax number specified above would be deemed, unless the contrary is proved to have been received: –

• within four hours of transmission if it is transmitted during normal business hours;
• at twelve noon on the first business day after it is transmitted if transmitted outside of normal business hours.

20.  DISPUTE RESOLUTION

• Should any dispute, disagreement or claim arise between the Parties (“the dispute”) concerning this Agreement the Parties may endeavour to resolve the dispute by negotiation.

• This entails one of the Parties inviting the other or others in writing to meet and to attempt to resolve the dispute within 7 (seven) days from date of written invitation.
• If the dispute has not been resolved by such negotiation within 7 (seven) days of the commencement thereof by agreement between the Parties, any of the Parties may: submit the dispute to be adjudicated by way of arbitration in accordance with the provisions of clause 4.
• Failing agreement as referred to in clause 2. or in the event of either of the Parties furnishing its notice of dispute within 7 (seven) the dispute shall be submitted to arbitration in Cape Town for final resolution in accordance with the rules of AFSA by an arbitrator, who shall be an advocate of the Bar of Cape of Good Hope for at least 5 years, appointed by AFSA 
• This does not prohibit the Owner to approach any competent court for adjudication.