Terms and conditions of Service

1. INTRODUCTION
   1. These Terms of Service apply to all Agreements between the Company and each of its Clients.
   2. These Terms of Service and the Agreements set out the entire agreement between the Company and each Client, unless other terms are agreed in writing and signed by the Client and the Company.
2. DEFINITIONS
   1. For the purposes of these Terms of Service, unless inconsistent with the context or otherwise specified, the following terms shall be defined as follows, namely:
      1. “Access Hours” between the hours of 08h00 and 17h00 on every day of the year excluding Sundays and days on which a public holiday is observed in the Republic of South Africa;
      2. “Agreement” means in relation to each Client, the agreement entered into between the Client and the Company, consisting of a Client and Vehicle Information Form, the Condition Report and Photographs relating to the Vehicle(s), the agreed Charges, the Waiver and these Terms of Service, plus any additional written agreements made as between the Client and the Company; 
      3. “Alternate Site” means a location at a premises of the  Company where the Services are to be rendered in the event that the Site is unavailable, as contemplated in clause ; 
      4. “Client and Vehicle Information Form” means the form completed by Customers, setting out their details and the details of any Vehicles;
      5. “Condition Reports” means the reports detailing the condition of any Vehicles delivered to the Company;
      6. “Company” means The Archive Automotive (Pty) Ltd, registration number 2018/364870/07;
      7. “Charges” the fees for Services provided by the Company, specified in clause 5.1; 
      8. “Customer” means any person(s) or other entity entering into an Agreement with the Company; 
      9. “CPA” means the Consumer Protection Act, 68 of 2008;
      10. “Parties” means the Client and the Company; 
      11. “Data Protection Laws” means the Protection of Personal Information Act 4 of 2013 or any legislation which may amend and/or supersede the aforementioned Act from time to time; and
   2. “Force Majeure E includes, but is not limited to, unforeseen circumstances, war, threat of war, riot, civil or political unrest, terrorist activity, strikes, natural or nuclear disaster, bad weather conditions, pandemic and technical problems.
      1. “Services” means:
         1. the Storage Services, as contemplated in clause 4.1; and/or
         2. the Vehicle Services, as contemplated in clause 4.2;
      2. “Site” means the Company’s premises situate at [] Solan Street, Gardens Cape Town; 
      3. “Storage Term” means the period specified in the Client and Vehicle Information Form or otherwise 
      4. “Terms and Conditions” means these terms and conditions as varied by the Company from time to time and notified to the Client in writing.
      5. “Vehicle(s)” means each of the motor vehicle, motorcycle or other means of conveyance owned or used by the Client and left at the Site;
      6. “Vehicle Contents” means any items stored in a Vehicle, the details of which are specified in the Client Schedule;
      7. “Waiver” means the duly completed and signed online waiver provided by the Client to the Company confirming that the Client waives all rights to claim against the Company for any loss of or destruction or damage to the Vehicle(s) and the associated Vehicle Contents which occurs during the provision of the Services or whilst the Vehicle is at the Site.
   3. References to the plural include the singular and vice versa.
   4. Clause headings are for convenience only and shall not affect the construction or interpretation of these Terms of Service.
   5. The singular shall include the plural and vice versa , pronouns of any gender shall include those of the other gender and natural persons shall include legal and juristic persons and vice versa.
3. IMPORTANT NOTICES
   1. These Terms of Service contains standard terms and conditions on which the Company provides vehicle storage solutions to its clients.
   2. These Terms of Service contain terms and conditions which appear in similar text style to this clause and which:
      1. may limit the risk or Liability of the Company or a third party; and/or
      2. may create risk or Liability for the Client; and/or
      3. may compel the Client to indemnify the Company or a third party; and/or
      4. serves as an acknowledgement, by the Client, of a fact.
   3. The Client’s attention is drawn to these terms and conditions because they are important and should be carefully noted.
   4. Nothing in these Terms of Service is intended to or must be understood to unlawfully restrict, limit or avoid any rights or obligations, as the case may be, created for either of the Client or the Company in terms of the CPA, where the Client is considered a consumer for the purposes of the CPA.
4. SERVICES
   1. Storage Service

The Company provides high quality storage facilities for Vehicles, in accordance with the provisions of these Terms of Service and in consideration for the payment of the associated Charges (“Storage Services“). As part of that process, the Company will generally inspect Vehicles before accepting them for storage, complete a Condition Report and Photographs and may provide services in order to bring the condition of the Vehicle up to a state necessary for storage.

4. 2. Vehicle Services 

Additionally, provides various additional services to Client’s (either in conjunction with the Storage Services or on a standalone basis),  in accordance with the provisions of these Terms of Service and in consideration for the payment of the associated Charges (“Vehicle Services”).  The Vehicle Services include:

1. 1. 1. Charging;
      2. detailing;
      3. washing; and
      4. wrapping.
2. CHARGES AND PAYMENT
   1. Charges

In return for providing the Services during the Storage Term, the Client shall be liable to pay to Salient the following charges (“Charges”):

1. 1. 1. Storage Fees, being the storage fees payable in consideration for the Storage Services, as set out in the Client and Vehicle Information Form or as agreed with the Client from time to time; 
      2. Service Fees, being the services fees payable in consideration for the Vehicle Services, as set out in the Client and Vehicle Information Form or as agreed with the Client from time; and
      3. expenses reasonably incurred by the Company and agreed with the Client (including but not limited to the cost of travel to collect Vehicles, [insert more] charges),

unless expressly stated otherwise, shall be exclusive of Value Added Tax.

5. 2. Invoicing and Payment
      1. The Client will be invoiced in respect of:
      2. Storage Fees on a monthly basis in advance on the last day of the preceding month; and
         1. Service Fees, any expenses, disbursements, disclosure fees or other amounts owed by the Client to the Company monthly in arrears on or before the last day of the month.
         2. The Client will pay all invoices issued by Company to the Client under these Terms of Service into the bank account specified in the invoice and in full, without setoff, counterclaim or deduction of any kind, within 15 (fifteen) days of receipt of such invoice. 
   3. Disputed Charges
      1. The Client shall pay undisputed amounts when those amounts are due. The Client may withhold payment of any amount that the Client disputes in good faith until such dispute is finally resolved.
      2. Any disputed charges must be reported to the Company within 7 (seven) days of receipt of the invoice containing the disputed charges, failing which the Client shall not be entitled to dispute such amount.
      3. The Parties shall in good faith settle the dispute within 5 (five) days, failing which either Party may refer the matter for Dispute Resolution in accordance with clause 16.
   4. Late Payment

Without the Company waiving any other right or remedy it may have under the Terms of Service, if any amount due is not paid by the Client by the due date, the Company may:

1. 1. 1. suspend the relevant Services (such that the Client will not have access to those Services); and/or 
      2. exercise a lien over any Vehicle or Vehicle Content as contemplated in clause 13.1

until the outstanding amount is paid in full provided that any suspension of Services or exercising of any lien under this clause 5.4 does not in any way suspend or alter the Client’s obligation to pay for the relevant Services in full. 

6. SITE ACCESS AND COLLECTION AND DELIVERISES 
   1. Site Access and Collection
      1. Only the Client and persons authorised by the Client or accompanied by the Client will be allowed to have access to the Site and the Vehicles. Any person attending the Site must carry suitable identification. The Client shall be liable for the acts and omissions (including negligence) of any such person as if they were the Client’s own. The Company may refuse the Client or its authorised persons access at any time if the Company considers in its sole discretion that the safety of any person on the Site, or the security of any property on the Site will be put at risk. 
      2. For the avoidance of doubt, no access to the Site or the Vehicles will be permitted outside the Access Hours, without prior arrangement with the Company. The Company will endeavour to give the Client advance warning of changes in Access Hours by writing to the Client, but the Company reserves the right to change the Access Hours to other reasonable access hours at any time without giving any prior notice.
      3. Should the Client require access to the Site during the Access Hours to show your Vehicles to potential buyers, You must first gain authorisation from the Company for such named individuals to access the Site (accompanied at all times by the Client or its authorised representative) and the provisions of clause 6.1 will apply. 
      4. The Client will and the Client will procure that all persons authorised by the Client will at all times comply with the terms of these Terms of Service but in particular, the provisions of clauses 10.4 to 10.6
   2. Delivery

Requests for delivery of a Vehicle away from the Site must be dealt with by special arrangement and a Charge will be made depending on the distance and time involved.  No liability will attach to the Company for any losses to the Client as a result of late or non-delivery, where Company shows that it used its reasonable endeavours to comply with the Customer’s request.

7. UNAVAILABILITY OF THE  SITE
   1. Should the Site be destroyed, or damaged to an extent which prevents the Company from rendering the Storage Services and/or Vehicle Services at the Site or should the Site become substantially unleasable:
      1. the Client shall have no claim of any nature whatever against the Company as a result thereof ; and
      2. the Company shall either, in their sole discretion:
         1. relocate the Vehicles to an Alternate Site at which it will render the Services until such time as the Site has been reinstated or, in the event that the Site is not reinstated, for the remainder of the term of the Agreement; or
         2. terminate the Services, or part thereof, if it is impractical or uneconomical to render them at an Alternate Site or an Alternate Site cannot be located within a reasonable time period.
   2. The sale or other alienation howsoever arising of the Site or any part thereof prior to the termination of the Agreement shall not affect the Agreement, nor shall it entitle the Client to resile from the Terms of Service or to cancel the Agreement.
8. CLIENT INSURANCE 

The Client warrants to the Company that prior to bringing any of the Vehicles and the Vehicle Contents onto the Site, the Client shall have insured them on an “all risks” basis under a valid contract of insurance with a reputable insurance company and will not cause or allow that insurance cover to lapse whilst the Vehicles and the Vehicle Contents remain on the Site. Evidence of such insurance should be provided to the Company: 

1. 1. within 14 (fourteen) days of the Vehicle arriving in the Site and thereafter annually, by 31 January; 
   2. in the event of any change of details of a Vehicle resulting in a change to the Client’s insurance policy; and
   3. upon expiry and renewal of such insurance. 
2. LIMITATION OF LIABILITY AND WAIVER
   1. Nothing in these Terms of Service shall affect Your statutory rights, and nothing shall exclude or limit or purport to exclude or limit the Company’s liability for: 
      1. death or personal injury caused by its negligence; or 
      2. fraudulent misrepresentation; or 
      3. any limitation or exclusion prohibited by the CPA (if applicable) or other law. 
   2. Subject to clause 9.1, and as more fully set out in the Waiver, the Company shall not be liable whether in delict (including negligence or breach of statutory duty) contract, misrepresentation or otherwise for any damage to or loss or destruction of the Vehicles and/or the Vehicle Contents in the provision of the Services or whilst the Vehicles and/or the Vehicle Contents are on the Site (whether caused by negligence or otherwise) including without limitation, where the provisions of clauses 13.2 and 14.6 above apply. 
   3. The Company’s maximum aggregate liability for all other liability (other than that specified in this clause 9), in respect of any breach or termination of these Terms of Service or breach of any other obligation arising out of or in connection with these Terms of Service or its performance or any failure or delay in performance of these Terms of Service (whether caused by negligence or otherwise in each instance), shall be limited to the Charges You have paid to the Company in the calendar year in which the liability arises. 
3. WARRANTIES AND OBLIGATIONS 
   1. The Client warrants that the Vehicles and the Vehicle Contents are, and shall remain, the Client’s own property or that the person who owns or has an interest in them has given the Client irrevocable authority to engage in the Services in respect of the Vehicles and the Vehicle Contents on the terms and conditions of the Agreement. 
   2. The Client must not store (and the Client must not allow any other person to store) any of the following items in the Vehicles brought onto the Site: 
      1. firearms, explosives, weapons or ammunition; or
      2. any illegal substances, illegal items or goods illegally obtained. 
   3. The Client must not (and the Client must not allow any other person to): 
      1. do anything on the Site or in the Vehicles on the Site which may be a nuisance to the Company or other persons on the Site; 
      2. do anything on the Site or in the Vehicles on the Site which may invalidate any of the Company’s insurance policies or those of others occupying the Site or increase the premiums payable on them; 
      3. use the Site or the Site as offices or business address; 
      4. cause any damage to any other vehicles or other property on the Site; or
      5. wash the Vehicles in the Site or anywhere on the Site.
   4. The Client must (and the Client shall procure that Your authorised persons shall): 
      1. use reasonable care when on the Site or in the Vehicles on the Site and take all reasonable care in respect of the Site and the property of the Company and others on the Site; 
      2. inform the Company immediately of any damage or defect to the Vehicles, other vehicles on the Site or the Site itself; 
      3. comply with the reasonable directions of any of Company employees at the Site and any further regulations for the safety and security of the Site which the Company may issue from time to time; 
      4. ensure the Vehicles clearly display the registration number which has been entered by the Client on the Client and Vehicle Information Form; 
      5. ensure the Vehicles remain in the Site (other than when being driven into and out of the Site or moved in accordance with these Terms of Service);
      6. ensure that the Vehicles are locked so as to be secure from unauthorised entry at all times. 
   5. The Client must (and the Client shall procure that the Client’s authorised persons shall) observe the health and safety, security and other rules of the Site (as amended from time to time) copies of which are available at the Site and upon request. 
   6. The Client agrees to indemnify the Company for any costs, losses, damages, claims and/or liabilities incurred by the Company as a result of a breach by the Client of any of the above mentioned warranties or obligations. 
4. AMENDMENTS TO THE AGREEMENT 

The Client and the Company may agree any amendments to the Client and Vehicle Information Form as they see fit and, in the event of any change to the details of the Vehicle, its substitution for an alternative Vehicle or the inclusion of additional Vehicles, these Terms of Service will continue to apply, unless or until they are modified with the written agreement of both the Client and the Company.

12. SALE OF VEHICLES DURING THE STORAGE TERM

In the event the Client elects to sell or transfer a Vehicle during the Storage Term, the Client agrees to remove the Vehicle and the Vehicle contents as soon as possible following the conclusion of the sale. The Client acknowledge that until such time as the sale is completed and the Vehicle has been removed from the Site the Client shall remain liable for the Charges and compliance with these Terms of Service at all times, including the obligation to insure the Vehicle and Vehicle Contents. 

13. RIGHTS OF THE COMPANY 
    1. General Lien
       1. The Company has a general lien on the Vehicles and the Vehicle Contents for payment of all Charges due from the Client which are not paid on their due date (in accordance with clause 5). The Company may exercise its lien at any time by giving written notice to the Client, such notice to specify the amount of the debt owed by the Client to the Company. In the event the debt which the lien has been exercised is not fully satisfied within 7 (seven) days of such notice, subject to clause 14.8 the Company may move, sell or otherwise dispose of the Vehicles (including the Vehicle Contents) or any part of them at the Client’s entire risk and expense and in accordance with clauses 14.7 and 14.8
       2. Where the provisions of clause 13.1 apply, Company may refuse the Client and the Client’s authorised persons access to the Site and the Vehicles and the Charges will continue to accrue. For the avoidance of doubt, the Vehicles and Vehicle Contents (if applicable) will only be released to the Client where the Company has been paid all sums owing to it whether or not such sums have been invoiced. 
    2. Right of access

The Client will permit the Company to enter any Vehicle at any time without notifying the Client: 

1. 1. 1. the Company reasonably believe that the Vehicle contains any items described in clause 10.2 or is being used in breach of clauses 10.3.1 to 10.3.3 or such entry is effected incidental to the exercise of the Company’s powers pursuant to clause 14.6;
      2. if the Company is required to do so by the police, fire services, local authority or by a court order; 
      3. if the Company believes it is necessary in an emergency; or
      4. to prevent injury or damage to persons or property. 
2. TERMINATION

General

1. 1. These Terms of Service will terminate following the completion of the Services or termination of the Agreement prior thereto, as contemplated in this clause 14.
   2. Upon termination of the Agreement for any reason whatsoever the Client will be required to remove the Vehicles and Vehicle Content the Site immediately. 

Early termination by the Company

14. 3. In the event that the Client:
       1. fails to pay any Charge due by the CLient in terms of these Terms of Service on the due date and remain in default for more than 7 (seven) days after being notified in writing to do so by the Company; or
       2. commits any other breach of any terms of these Terms of Service and fails to commence remedying that breach within a period of 10 (ten) days after the receipt of written notice to that effect by the Company and complete the remedying of such breach within a reasonable time; or
       3. repeatedly breach any of the terms of these Terms of Service in such manner as to justify the Company in holding that the Client’s conduct is inconsistent with the intention or ability of the Client to carry out the terms of these Terms of Service; or
       4. commit an act of insolvency,

then and in any one of such events the Company shall without prejudice to its rights to damages or to its right to remove the Vehicles and Vehicle Contents from the Site or to any other claim of any nature whatever that the Company may have against the Client as a result thereof:

14. 3. 5. be entitled to terminate the Services, or part thereof and/or cancel the Agreement; or
       6. in the case of clause 14.3.2, be entitled to remedy such breach and immediately recover the total cost incurred by the Company in so doing from the Client.
    4. Should the Company institute action against the Client pursuant to a breach by the Client of the Agreement, then without prejudice to any other rights which the Company may have, the Company shall be entitled to recover all legal costs incurred by it from the Client.

Early termination by the Client

14. 5. If the Client wishes to terminate the Agreement (or any part thereof), the Client shall be entitled to do so upon 1 (one) months written notice to the Company, provided that the:
       1. Company shall not be obliged to refund to the Client any of the prepaid Charges; and
       2. the Client must make payment of any Storage Fees that would fall due under the remaining term of the Agreement (i.e. the term for which the Storage Services were agreed to be rendered) for the notice to be effective,

Failure to collect vehicles and Vehicle Contents upon termination

14. 1. In the event You fail to collect the Vehicles and the Vehicle Contents at the expiration or early termination of the Agreement or after the Company has required You to collect them, the Company may in accordance with the general lien referred to in clause 13.1 move the Vehicle to a secure area of the Site at the Client’s cost or subject to clauses 14.7 and 14.8, sell the Vehicles and the Vehicle Contents and pass all ownership of them and use the proceeds of sale to (i) first pay the disposal costs and (ii) secondly in paying any sums due to the Company  pursuant to the Agreement and (iii) thirdly to hold any balance for the Client. If the proceeds of sale are insufficient to discharge (i) and (ii) or the Company, despite acting in accordance with clause 14.8 is unable to obtain a buyer and must pay disposal costs, the Client must pay any balance outstanding to the Company (meaning the disposal costs and the costs at (i) and (ii) above) within 14 (fourteen) days of a written demand from the Company setting out the balance owing. 
    2. Before the Company sells the Vehicles and the Vehicle Contents, the Company will give the Client notice in writing in accordance with clause 17 directing the Client to remove the Vehicles and the Vehicle Contents within a further 14  (fourteen) days (and pay to the Company any Charges due) failing which the Company will sell the Vehicles and the Vehicle Contents as provided for in clause 14.8
    3. The Company will sell the Vehicles and the Vehicle Contents by the best method reasonably available to achieve the best selling price reasonably obtainable on the open market, taking into account the costs of sale.
15. DATA PROTECTION
    1. The  Clienthereby  expressly  gives  the  Company  permission (and warrants that it has obtained the permission of its authorised representatives, where applicable)  to  process  any  of  the Client’s (and their authorised representatives) “personal information” as defined in the Data Protection Laws:
       1. for any purposes connected with the Agreement , including but not limited to maintaining personal contact details, to comply with applicable legislation, security and access control; 
       2. in order  to fulfil the Companies obligations in terms of the Agreement; or 
       3. to protect the Company’s legitimate business interests.
    2. For purposes of this clause 15, “processing” refers to processing as defined in the Data Protection Laws and includes but is not limited to collecting, receiving, recording, organising, collating, storing, updating, retrieving, altering, using, disseminating, distributing, merging, linking, blocking, degrading, erasing or destroying of any personal information.
    3. The Client warrants that any and all personal information provided by the Client to the Company shall at all times be true and correct.
16. DISPUTE RESOLUTION
    1. Should any dispute, disagreement or claim arise between the Parties from or in connection with the Agreement, including a dispute regarding the legality or validity of the Agreement (or any part thereof), the Parties shall try to resolve such dispute by confidential negotiation. In this regard, either party shall invite the other in writing to a meeting in an attempt to resolve the said dispute within 14 (fourteen) days from the date of the said invitation. 
    2. If the dispute has not been resolved by such negotiation, the Parties shall submit the dispute to arbitration under the rules for commercial arbitration of the Arbitration Foundation of South Africa, which rules are deemed to be incorporated by reference into this clause 1615.
    3. The following provisions shall apply to any such arbitration:
       1. The number of arbitrators shall be one;
       2. The seat, or legal place, of arbitration shall be Cape Town; and
       3. The language to be used in the arbitral proceedings shall be English.
    4. Notwithstanding the provisions of clause 16.1 and 16.2, either Party shall have the right to seek interim relief from any court of competent jurisdiction, pending the outcome of the arbitration. 
    5. The Parties agree that this clause 16 shall be severable from the rest of these Terms of Service and shall survive termination of these Terms of Service.
17. NOTICES AND ADDRESSES
    1. The Party choose as their domicilia citandi et executandi for all purposes under these Terms of Service, whether in respect of court process, notices or other documents or communications of whatsoever nature, those addresses reflected in the Client and Vehicle Information Form;
    2. Any notice or communication required or permitted to be given in terms of these Terms of Service shall be valid and effective only if in writing but it shall be competent to give notice by email.
    3. Any of the Party hereto may by notice to the other Party change the physical address chosen as its domicilium citandi et executandi to another physical address or its or its email address, provided that the change shall become effective on the 7th (seventh) Business Day from the deemed receipt of the notice by the other Parties.
    4. Any notice to a Party:
       1. delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
       2. sent by email to its chosen email address stipulated the Client and Vehicle Information Form shall be deemed to have been received on the date of transmission (unless the contrary is proved).
    5. Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
18. GENERAL
    1. No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
    2. No addition to, variation or consensual cancellation of these Terms of Service shall be of any force or effect unless in writing and signed by or on behalf of each Party.
    3. No indulgence which any Party may grant to another shall constitute a waiver of any of the rights of the grantor who shall not thereby be precluded from exercising any rights against the grantee which might have arisen in the past or which might arise in the future.
    4. Each Party acknowledges that, in entering into these Terms of Service, it is not relying upon any warranties, representations or undertakings howsoever or to whomsoever made, save and except in so far as same are embodied in these Terms of Service.
19. SEVERABILITY

Any provision in the Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by the Terms of Service shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of the Terms of Service, without invalidating the remaining provisions of the Terms of Service or affecting the validity or enforceability of such provision in any other jurisdiction.

20. NO CESSION

Neither of the Parties shall be entitled to cede and/or delegate respectively any or all of their rights and obligations under the Agreement to any third party.

21. FORCE MAJEURE (“SUPERIOR FORCE”)

the Parties’ will not be held responsible, or pay any compensation to the other Party, if the performance of that Party’s contractual obligations in terms of the Agreement is affected, cancelled, delayed or otherwise impacted upon by a Force Majeure Event.

22. LAW & JURISDICTION

The construction, performance and validity of these Terms of Service shall be governed by South African law and, subject to clause 16, the Parties hereby submit to the non-exclusive jurisdiction of the Western Cape High Court, Cape Town regarding any and all disputes arising in connection with these Terms of Service.

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