Terms and Conditions

1. INTERPRETATION

1.1 In this Agreement, unless the context requires otherwise, the words and expressions set out below shall have the meanings assigned to them and cognate expressions shall have a corresponding meaning, namely:

  1. 1.1.1  “Agreement” means the agreement recorded in this document and all annexures and/or schedules hereto, all of which shall be deemed to be an integral part and shall constitute the entire understanding between the Parties hereto;

  2. 1.1.2  “Business Day” means any day other than a Saturday, Sunday or public holiday officially recognised as such in the Republic of South Africa;

  3. 1.1.3  “the Company” means Smokey Treats Proprietary Limited (Registration Number 2016/082347/07) a company duly incorporated in accordance with the applicable laws of South Africa, with address: and with email address: Unit 107, Old Castle Brewery, Woodstock, Cape Town, and with email address: [email protected];

  4. 1.1.4  “Confidential Information” means any information provided to a receiving Party relating to the other Party’s business, its Intellectual Property, its suppliers and/or customers that the disclosing Party should reasonably expect to be confidential or proprietary under the circumstances and/or given the nature of the materials, documents and information, including but not limited to designs and trade secrets;

  5. 1.1.5  “Delivery Fees” means the delivery fees payable by the Distributor to the Company in respect of the delivery of the Products, which, as at the Signature Date, are as set out on the Website;

  6. 1.1.6  “Distributor” means the Party indicated as such on the cover page of this Agreement;

  7. 1.1.7  “Force Majeure” shall have the meaning ascribed thereto in clause 18.2 below;

  8. 1.1.8  “Intellectual Property” means any and all patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, social media profiles, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, Confidential Information (including but not limited to know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including (but not limited to) all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

  1. 1.1.9  “Mobile Platform” means the online mobile sales platform operated by the Company from time to time;

  2. 1.1.10  “Parties” means the Company and the Distributor collectively, and “Party” shall refer to either one of them as may be indicated by the context;

  3. 1.1.11  “Products” means the eco-friendly tobacco products and related paraphernalia manufactured by the Company from time to time, and as listed on the Website from time to time;

  4. 1.1.12  “Renewal Period” means, subject at all times to clause 3 below and in particular, the provisions of clause 3.2 below, a period of 6 (six) months, determined from the expiry of the Term and/or any subsequent renewal period;

  5. 1.1.13  “Signature Date” means the date on which the last Party signing this Agreement does so;

  6. 1.1.14  “Territory” means the Republic of South Africa;

  7. 1.1.15  “Term” means a period of 6 (six) months reckoned from the 1st (first)

    day of the month immediately following the Signature Date;

  8. 1.1.16  “VAT” means value-added tax as defined in the Value-added Tax Act, 1991 (as amended); and

  9. 1.1.17  “Website” means the website owned and operated by the Company in terms of which the Distributor is to purchase the Products, as contemplated in this Agreement, located at the domain name www.smokeytreats.co.za.

  1. 1.2  Words importing the singular shall include the plural and vice versa, and words importing the masculine gender shall include the other genders, and words importing a natural person includes a juristic person and vice versa;

  2. 1.3  The head notes to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.

  3. 1.4  This Agreement shall be binding on and enforceable by the trustees, permitted assigns, liquidators or other legal successors of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party shall be deemed to include (without limitation) such Party’s trustees, permitted assigns, liquidators or other legal successors, as the case may be.

  1. 1.5  Full effect shall be given to any substantive provision conferring rights and obligations upon the Parties and contained in clause 1 or clause 2 provided that if any provision in clause 1 or clause 2 conflicts with any other provision of this Agreement, such other provision shall prevail and be carried into effect.

  2. 1.6  Whenever a number of days is prescribed in this Agreement, such number shall be calculated excluding the first and including the last day, unless the last day falls on a day which is not a Business Day, in which event the last day shall be the next day which is a Business Day.

  3. 1.7  Whenever performance is required to be made in this Agreement on any date and such date is not a Business Day, such performance shall be required to be made on the next date which is a Business Day.

  4. 1.8  Where any term is defined within the context of any particular clause in this Agreement, the term so defined shall, unless it appears clearly from the clause in question that such term has limited application to the relevant clause, bear the meaning ascribed for all purposes in terms of this Agreement, notwithstanding that such term has not been defined in this clause 1.

  5. 1.9  The terms defined in this Agreement shall bear the same meanings in the annexures which do not contain definitions.

  6. 1.10  This Agreement includes all annexures which are an integral part of this Agreement.

  7. 1.11  Any reference in this Agreement to:

    1. 1.11.1  “laws” means all constitutions; statutes; regulations; by-laws; codes; ordinances; decrees; rules; judicial, arbitral, administrative, ministerial, departmental or regulatory judgements, 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; and

    2. 1.11.2  “person” means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality;

  8. 1.12  A reference to any statutory enactment shall be construed as a reference to that enactment as at the Signature Date and as amended or substituted from time to time.

  1. 1.13  Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail.

  2. 1.14  The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply.

  3. 1.15  Where, in terms of this Agreement any communication is required to be in writing,

    the term “writing” shall include (without limitation) communications by facsimile or email.

  1. INTRODUCTION

    1. 2.1  The Company carries on the business of manufacturing and selling of the Products,

      and wishes to expand its distribution line, with a view to reaching more customers.

    2. 2.2  The Distributor wishes to distribute and sell the Products in the Territory, and wishes to form a business relationship with the Company.

    3. 2.3  The Parties wish to record their agreement in terms of the sale of the Products in the Territory on the terms and conditions set out in this Agreement, for the Term and potentially for one or more of the Renewal Periods.

  2. APPOINTMENT

    1. 3.1  The Distributor is hereby appointed on a non-exclusive basis to distribute the Products in the Territory for the Term, and if applicable, any Renewal Period. For the avoidance of doubt, the Company is entitled to appoint additional distributors to sell the Products in the Territory (and any other products which may be similar to the Products).

    2. 3.2  Subject at all times to the provisions of clause 3.3 below, the Agreement shall be automatically renewed for each Renewal Period, provided that the Distributor:

      1. 3.2.1  is not in breach of this Agreement; and

      2. 3.2.2  has met the target threshold as set out in terms of Annexure 1 to this Agreement.

    3. 3.3  Notwithstanding anything to the contrary in this Agreement:

      1. 3.3.1  the Company shall, in its sole and absolute discretion, and at all times

        have the right to terminate this Agreement upon 5 (five) days’ written

        notice to the Distributor, without giving reasons for such termination and without incurring penalties of any nature whatsoever; and

      2. 3.3.2  the Distributor shall be entitled to terminate this Agreement upon 5 (five) days’ written notice to the Company, and provided that the Distributor has made payment to the Company of any and all outstanding amounts.

  1. SUPPLY OF THE PRODUCTS

    1. 4.1  The Company shall manufacture the Products and the Distributor shall purchase such quantities of Products as it may wish to order from time to time in accordance with the terms and conditions of this Agreement.

    2. 4.2  The Company shall provide the Distributor with such information as may be reasonably required by the Distributor concerning the Products from time to time.

  2. MANUFACTURING OF PRODUCTS
    The Company shall manufacture, pack and supply the Products in accordance with generally

    accepted industry standards and practices that may be applicable.

  3. PRODUCT PRICES

    1. 6.1  The wholesale and recommended retail pricing structure of the Products (“Product Prices”) as at the Signature Date and for the Term (and each Renewal Period, as the case may be), subject to clause 6.4, shall be the prices set out on the Website and the Mobile Platform.

    2. 6.2  The Product Prices are inclusive of the Delivery Fees, of amounts in respect of any applicable excise tax(es) and VAT.

    3. 6.3  The Product Prices shall each increase on an annual basis with effect from 01 March each year.

    4. 6.4  Notwithstanding anything to the contrary in this Agreement, the Company reserves the right to increase the Product Prices by the publication of such increase on the Website and the Mobile Platform, without notification of such increase(s) to the Distributor.

  4. ORDERS

    1. 7.1  The Distributor shall, from time to time, order such Products as it may require via

      the Website or the Mobile Platform (each an “Order”).

    2. 7.2  Each Order shall:

7.2.1 be submitted by the Distributor:

  1. 7.2.1.1  on the Website, in accordance with the Website’s terms and conditions from time to time; or

  2. 7.2.1.2  to the Company’s sales team on the Mobile Platform, in accordance with the Mobile Platform’s terms and conditions from time to time; specify the type and quantity of Products ordered; and

7.2.3 contain any other terms as may be agreed between the Parties in writing.

  1. INVOICING AND PAYMENT

    1. 8.1  Upon the valid placement of an Order by a Distributor in accordance with the provisions of clause 7 above, such Order shall constitute a pro forma tax invoice, and which pro forma tax invoice shall reflect the aggregate Product Price, together with all applicable taxes, payable by the Distributor in respect of that Order (together, the “Purchase Price”).

    2. 8.2  Immediately after the placement of an Order by the Distributor in accordance with the provisions of clause 7 above, the Distributor shall make payment to the Company of the Purchase Price in full, on the secure online payment facilities provided on the Website or the Mobile Platform (as the case may be), by way of electronic funds transfer, without any deductions or set-off of any kind.

    3. 8.3  Following receipt by the Company of the Purchase Price in full, the Company shall:

      1. 8.3.1  reserve the Products for delivery to the Distributor (or for collection, as the case may be) as contemplated in clause 9 below; and

      2. 8.3.2  provide the Distributor with a final tax invoice.

    4. 8.4  For the avoidance of doubt, the Company shall not be required to reserve any Products ordered by the Distributor until payment of the Purchase Price has been received by the Company in full.

  2. DELIVERY OF PRODUCTS

    1. 9.1  On the Website (or the Mobile Platform, as the case may be), the Distributor must

      nominate an address for the delivery of the Products.

    2. 9.2  Save as where otherwise agreed to by the Parties in writing, as contemplated in clause 7.2 above, and upon receipt by the Company of the Purchase Price in full, as contemplated in clause 8.2, the Company will endeavour to ensure that the date by which the Order is to be delivered shall be no later than 24 (twenty four) hours after payment has been received by the Company, and the Company shall notify the Distributor in writing if the Company is unable to deliver the Products to the Distributor within this 24 (twenty four) hour period.

    3. 9.3  The risk and title in and to the Products shall pass to the Distributor upon delivery of the Products to the Distributor, provided at all times that payment has been received by the Company in full.

    4. 9.4  The Parties agree that the Company shall not be responsible for any loss or unauthorised use of the Products, of any nature whatsoever, after the Products have been delivered by the Company to the address nominated by the Distributor on the Website or the Mobile Platform (as the case may be).

  1. SALES SUPPORT

    1. 10.1  Upon written request by the Distributor, the Company shall use its reasonable endeavours to make certain equipment available to the Distributor to assist the Distributor with its sales of the Products, which equipment the Distributor shall be able to purchase by placing an order for same with the Company telephonically on the following telephone number: 021 206 6140.

    2. 10.2  Such equipment shall include, but not be limited to, displays, posters, and other merchandising items as indicated on the Website and the Mobile Platform from time to time.

    3. 10.3  On Business Days between 9am to 5pm, the Distributor shall have access to the Company’s sales support staff, through the Website and the Mobile Platform.

  2. DISTRIBUTOR UNDERTAKINGS AND WARRANTIES

    1. 11.1  The Distributor hereby warrants and undertakes in favour of the Company that it shall comply with all applicable laws, enactments, orders, regulations and labelling requirements and other legislative instruments relating to the advertisement, manufacture, sale, packaging, handling, and delivery of the Products in the Territory, including but not limited to the Tobacco Products Control Act, 1993 (as amended).

    2. 11.2  The Distributor hereby further warrants to and in favour of the Company that:

      1. 11.2.1  it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into and perform all its obligations under this Agreement;

      2. 11.2.2  this Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms;

      3. 11.2.3  it has the requisite experience, skills and resources to perform its obligations as set out in this Agreement;

      4. 11.2.4  it is entering into this Agreement as principal (and not as agent or in any other capacity);

      5. 11.2.5  the execution of this Agreement and the performance of its obligations hereunder does not and shall not:

        11.2.5.1 contravene any provision of the Distributor’s constitutional documents (if applicable); or

11.2.5.2 conflict with, or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it.

  1. 11.3  Each warranty and each representation is deemed to be a representation of fact inducing the Company to enter into this Agreement. Each warranty and each representation is deemed to be material.

  2. 11.4  Each warranty and each representation is a separate warranty and representation and in no way limited or restricted or governed by any reference to or inference from the terms of any other warranty or representation.

  3. 11.5  Where any warranty or representation refers to the knowledge, information, awareness, opinion or belief of the Distributor, the Distributor undertakes that it has made full and diligent enquiry into the subject matter of that warranty and representation and that any such opinion or belief is fairly and honestly held by the Distributor (and any member, director, officer, manager or prescribed officer of the Distributor, as the case may be).

12. GENERAL INDEMNITY AND LIMITATION OF LIABILITY

  1. 12.1  The Distributor hereby indemnifies and holds the Company, its officers, committee members, employees, and/or contracted suppliers harmless in respect of any liability or claim that may be brought against the Company in relation to the sale of the Products by the Distributor, its employees and/or contracted suppliers, if applicable.

  2. 12.2  The Distributor undertakes to take appropriate and necessary steps to defend or settle any claim being instituted or anticipated against the Company or any other person mentioned above in respect of any matter in respect of which it is indemnified as envisaged above.

  3. 12.3  This shall not preclude the Company, in its sole and absolute discretion, from defending or settling the claim in its own name. In such an event the Company shall notify the Distributor in writing of its intention to defend or settle the claim in its own name, after which the Distributor shall render any reasonable assistance required by the Company.

  4. 12.4  The Company shall not in any way be:

    1. 12.4.1  liable to the Distributor or any third party connected with the Distributor in respect of any claims arising from any losses suffered as a result of sale by the Distributor of the Products; or

    2. 12.4.2  held vicariously liable for any unauthorised actions by the Distributor.

  1. NO PARTNERSHIP
    Nothing contained in this Agreement shall be deemed to constitute that any partnership, joint

    venture or employee-employer has been created between the Parties.

  2. GOVERNING LAW AND GENERAL DISPUTE RESOLUTION

    1. 14.1  This Agreement will be governed by and construed in accordance with the laws of South Africa.

    2. 14.2  In the event of a dispute between the Parties which cannot be resolved through negotiation or mediation between the Parties, such dispute shall be referred to arbitration on written demand by one of the Parties. The arbitration will be held in Cape Town before a single arbitrator in accordance with the rules of the Arbitration Foundation of South Africa NPC (“AFSA”), which arbitration shall be administered by AFSA.

    3. 14.3  Any Party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the AFSA rules for commercial arbitration.

    4. 14.4  Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim, or to refer the Dispute to the professional boards established in terms of the Legislation.

    5. 14.5  The Parties agree that the written demand by a Party in terms of clause 14.2 for the dispute or difference be submitted to negotiation, is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969 (as amended).

  3. CESSION

    1. 15.1  The Company shall have the right to cede, assign or delegate or otherwise transfer

      its rights and obligations to any other party without the consent of the Distributor.

    2. 15.2  The Distributor shall not be entitled to cede, assign or delegate or otherwise transfer its rights and obligations to any other party without the prior and express written consent of the Company.

  4. CONFIDENTIALITY

16.1 Each Party shall keep confidential and shall not, without the prior written consent of the other Party, disclose to any person:

  1. 16.1.1  the details of this Agreement; and

  2. 16.1.2  the Confidential Information which is not in the public domain, excluding disclosures required to be made in the financial statements of each Party and/or pursuant to any regulatory requirements.

  1. 16.2  The provisions of this clause 16 shall not preclude any Party from making any disclosure:

    1. 16.2.1  to its professional advisors, provided that it shall procure that such advisors comply with the provisions of this clause 16; and/or

    2. 16.2.2  which it is required to make under the applicable laws.

  2. 16.3  The provisions of this clause 16 shall survive the termination of this Agreement for any reason whatsoever.

  1. PUBLICITY

    The Parties agree that they shall not issue any press release or other public statement relating to their relationship with each other or this Agreement, without the express prior written consent of the other Party.

  2. FORCE MAJEURE

    1. 18.1  If either Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of any event constituting Force Majeure, then the other Party shall be relieved of its obligations hereunder during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations under this Agreement during such period.

    2. 18.2  An event of “Force Majeure” shall mean any event or circumstance whatsoever which is not within the reasonable control of that Party including (without limitation) vis major, casus fortuitus, any act of God, pandemics, strike, theft, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not) or military operations, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control and shortage of transport facilities, the downtime of any external line, and if the force majeure event continues for a period of longer than 30 (thirty) days, either Party may cancel the agreement.

  3. BREACH
    If any Party (“Defaulting Party”) commits a breach of this Agreement, and/or fails to comply

    with any of the provisions hereof, and:

19.1 if such breach is capable of remedy, and the Defaulting Party fails to remedy such breach and/or failure within 10 (ten) Business Days of receipt of a written notice from any other Party (“Aggrieved Party”) requiring such remedial action; or

19.2 if such breach constitutes a material breach and is incapable of remedy,

then the Aggrieved Party shall forthwith be entitled, but not obliged, without prejudice to any other rights or remedies which the Aggrieved Party may have in law:

  1. 19.3  to cancel this Agreement and/or claim damages; or

  2. 19.4  to claim immediate performance and/or payment of all the Defaulting Party’s obligations in terms hereof and/or claim damages.

  1. NOTICES AND DOMICILIA

    1. 20.1  Each of the Parties chooses domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purposes arising from this Agreement the following addresses:

      1. 20.1.1  in the case of the Distributor, at the address set out on the cover page of this Agreement; and

      2. 20.1.2  in the case of the Company, at the address set out in clause 1.1.3 above,

      which addresses may be changed upon written notice to the other Party (to an address other than a post office box).

    2. 20.2  Any notice given in connection with this Agreement which is sent to the address chosen by the Party concerned and:

      20.2.1 delivered by hand or by courier, shall be presumed (unless the contrary is proved) to have been received on the date of delivery; or

      20.2.2 sent by email, shall be presumed (unless the contrary is proved) to have been received on the 1st (first) Business Day after the date of transmission.

    3. 20.3  Any written notice (including any electronic mail) actually received by a Party shall be valid, notwithstanding that it may not have been given in accordance with the preceding provisions of this clause 20.

  2. GENERAL

    1. 21.1  This document contains the entire Agreement between the Parties and no Party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.

    2. 21.2  No alteration, cancellation, variation of, or addition hereto shall be of any force or effect unless reduced to writing and signed by the Parties to this Agreement or their duly authorised representatives.

  1. 21.3  No indulgence, leniency or extension of time which any Party (“the Grantor”) may grant or show to the other Party, shall in any way affect, prejudice or derogate from the rights of the Grantor or preclude the Grantor from exercising any of its rights in the future.

  2. 21.4  The Parties respectively shall cause all resolutions to be passed and undertake to sign all such other documents and do such other things as shall be necessary or requisite to give proper and due effect to the terms of this Agreement, or any matter arising therefrom, according to its intent and purpose.

  3. 21.5  Each and every provision of this Agreement is severable, the one from the other. If at any time any provision is or becomes or is found to be illegal, invalid, defective or unenforceable for any reason by any competent court, the remaining provisions shall be of full force and effect and shall continue to be of full force and effect.

22. COUNTERPARTS This Agreement:

22.1 may be signed in one or more counterparts all of which shall be considered one and the same Agreement;

22.2 shall become effective when a counterpart has been signed by each of the Parties.

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WOODLAND CARTON PRICING

No. of Cartons Price / Carton
(Incl. Shipping)
Total
1 R500.00 R500.00
2 R480.00 R960.00
3 R470.00 R1,410.00
4 R460.00 R1,840.00
5 R450.00 R2,250.00
10 R430.00 R4,300.00
15 R420.00 R6,300.00
20 R415.00 R8,300.00
25 R414.00 R10,350.00
30 R413.00 R12,390.00
35 R412.00 R14,420.00
40 R411.00 R16,440.00
45 R410.00 R18,450.00
50 R405.00 R20,250.00
51+ R400.00