STANDARD TERMS AND CONDITIONS OF SALE
STANDARD TERMS AND CONDITIONS OF SALE
- In this agreement:
- “CPA” means the Consumer Protection Act, 68 of 2008 (as amended from time to time);
- “CPA Customer” means any natural persons or juristic persons who are Customers as defined in 1.3 and whose asset value or annual turnover is below R2 000 000.00 or the Gazetted threshold determined in the CPA and its Regulations as amended from time to time;
- “the Customer” means the person or entity applying for a C.O.D account with the Supplier;
- “day” means a day other than a Saturday, Sunday or statutory public holiday in the Republic of South Africa;
- “the goods” ” means the goods and/or services rendered and as indicated on any forms, documents, price lists, quotations, orders, invoices and delivery notes of the Supplier;
- This agreement shall be incorporated in and shall apply consistently to every contract of sale entered into between the Customer and the Supplier whether such contract of sale is concluded orally or in writing.
- In this agreement:
CONSUMER PROTECTION ACT
This agreement contains terms and conditions which appear in similar text style to this clause 2 and which:
- limit the risk or liability of the Supplier or a third party;
- create risk or liability for the CPA Customer;
- compel the CPA Customer to indemnify the Supplier or a third party;
- constitute an acknowledgement, by the CPA Customer, of a fact.
- The CPA Customer’s attention is drawn to these terms and conditions because such terms and conditions are important, may create obligations for the CPA Customer or may limit the CPA Customer’s rights, and as such, should be carefully noted by the CPA Customer.
Nothing in this agreement 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 the Customer or the Supplier in terms of the CPA. To the extent that the Customer is a CPA Customer:
- the terms and conditions which appear only in clause 1 below will not apply to the CPA Customer, rather the terms and conditions which appear in clause 9.1.1 shall apply to the CPA Customer; and
- the CPA Customer acknowledges and confirms that the remainder of these terms and conditions do not conflict with the CPA and the CPA Customer shall perform its obligations under these terms and conditions.
- This agreement contains terms and conditions which appear in similar text style to this clause 2 and which:
- The prices quoted by the Supplier are based on the cost to the Supplier of material, labour, transport, customs, excise, insurance, railage, delivery costs and rates of exchange ruling at the date of the sale unless alternative shipping terms are communicated to the customer (“rates and charges”). In the event of there being any increase or decrease which affects all or any of such rates or charges prior to delivery, the prices will be subject to variation proportionately and without prior notice, at the discretion of the
- The Supplier, notwithstanding 1 above has the right, from time to time, without notice to the Customer, to change the prices of its goods prior to delivery.
- The price stated is exclusive of VAT, which VAT the Customer shall pay to the Supplier simultaneously with the purchase price.
- The Customer agrees to the standard rates of the Company for any goods supplied, which rates may be obtained on request.
- Payment shall be made by the Customer, free of bank exchange, set-off or any other deductions, to the Supplier immediately upon receipt of the Supplier’s invoice and prior to the delivery of the goods to the Customer, failing which the goods shall not be delivered to the Customer as contemplated in clause 6 below.
- All payments will be made to the Supplier by way of cash or electronic funds transfer. Should payment be made by way of electronic funds transfer, same shall only be considered a payment, duly received by the Supplier, once the amount has been cleared in the Supplier’s bank account.
- The Customer shall place an order (“purchase order”) on the Supplier from time to time, which order may be made in writing to such address, electronic or otherwise, as may be nominated by the Supplier from time to time. The order may further be made verbally, via the Supplier’s online portal or through the Supplier’s sales representative.
- The Supplier may first provide the Customer with a written quotation for the goods ordered by the Customer. Any quotation given by the Supplier shall not be an offer by the Supplier to sell goods, but constitutes an invitation by the Supplier to the Customer to do business with the Supplier.
- A valid and binding contract of sale will only come into force once the Supplier accepts the Customer’s order in writing. No order will be placed by the Supplier until the purchase price of the goods has been paid and cleared in the Supplier’s bank account.
- Notwithstanding anything to the contrary in this agreement, a quotation may be revoked at any time by the Supplier.
- Any order placed by the Customer shall be subject to the availability of the goods so ordered.
- The Customer shall provide the Supplier with a valid order number and a delivery address, unless the delivery address is the Customer’s delivery address as set out in the application form above.
- Should the Customer cancel or vary an order subsequent to a valid and binding contract of sale coming into force, and should the Supplier have already placed an order for the goods with its manufacturers/suppliers then, notwithstanding any other rights which the Supplier may have in law, the Supplier shall be entitled to charge the Customer the full purchase price of the goods so ordered and immediately invoice the Customer.
- The Customer agrees that goods will be offloaded at the nearest accessible point on site indicated by the Customer at the agreed address for delivery. Off‑loading of the goods shall be at the sole risk and cost of the Customer, who shall be responsible for any and all damage of whatever nature caused as a result of the off-loading of the goods. The Supplier, its employees or the employees of agents and/or subcontractors of the Supplier shall not be held liable for any damage to any goods delivered during the off-loading process, arising from any cause whatsoever. Risk in and to the goods shall pass to the Customer the moment the goods are ready for off-loading at the Customer’s premises from the Suppliers vehicle/s.
- If the Customer should choose to collect the goods from the Supplier’s premises using its own or its agent’s transport, such collection shall be entirely at the Customer’s risk, and the Customer shall be responsible for all damage of whatsoever nature caused as a result of or during such collection or thereafter. The risk in the goods will pass to the Customer at the time that the goods are made available for collection at the Supplier’s premises.
- Any delivery date indicated by the Supplier or the Customer shall not bind the Supplier to affect delivery on such date. The Supplier shall use is best endeavours to deliver the goods on such dates, but shall not in any way be liable for any damages that the Customer may suffer as a result of the failure by the Supplier or its agent to deliver the goods in time. The Customer shall accept delivery when it is tendered and shall not be entitled to cancel any order or be entitled to any other remedy against the Supplier by reason of such delay.
- If the Customer fails to take delivery of the goods ordered, or in any way delays the delivery of the goods ordered, when delivered or tendered for collection by the Supplier, then the risk in the goods shall immediately pass to the Customer and the Customer shall be liable to pay the Supplier the reasonable costs of storing, insuring and handling the goods, until delivery takes place.
- The Customer agrees that the signature of any agent, contractor, sub-contractor or employee of the Customer on the Supplier’s official delivery note and/or invoice and/or waybill, or the delivery note of any authorised independent carrier of the Supplier will constitute delivery of the goods purchased.
- Any claim for shortages in the delivery of goods must be received by the Supplier at the time of delivery of the goods to the Customer. Furthermore any alleged shortage must be endorsed by the Customer on the delivery note and/or invoice and/or waybill relating to the goods in question. Failing the aforementioned the content of the relevant delivery shall be deemed to be correct and all goods therein shall have been deemed to have been delivered as ordered.
- OWNERSHIP AND RISK
Notwithstanding that all risk in and to all goods sold by the Supplier to the Customer shall pass on delivery (as contemplated in clause 6 above), ownership in all goods sold and delivered shall remain vested in the Supplier until the full purchase price has been paid.
Returns, if accepted by the Supplier in writing and at its sole discretion and upon such terms as it may prescribe, shall be credited in full less a minimum of 10% (ten percent) handling charge, provided that the goods are in their original packaging and state and are not damaged and provided further that the Customer shall be liable for all costs of delivery to the Supplier’s designated premises. The designated sales representative, director or senior manager of the Supplier can only authorise returns.
WARRANTIES & INDEMNITIES
- The Customer:
- No warranties, guarantees or representations, express or implied whether by law, contract or otherwise, which are not recorded in this agreement and the Supplier’s Standard Warranty Terms and Conditions shall be binding on the Supplier. The goods are purchased “voetstoots”.
- The Supplier shall under no circumstances be liable to the Customer for delictual, special, indirect or consequential damages including but not limited to, loss of profits.
- The Supplier shall under no circumstances (except if gross negligence is proven) become liable to the Customer for any direct damages or losses sustained by the Customer, which are alleged to have been sustained by the Customer as a result of, but not limited to defective or incorrect goods, workmanship, manufacturing and/or short-delivered goods.
- Without in any way derogating from the provisions of clause 1.3, the Supplier’s liability on account of defective goods shall be limited exclusively to, at the Supplier’s sole discretion, and subject to same being confirmed in writing by the Supplier, the repair or replacement of the goods, provided that the goods are in their original packaging and state and provided further that the Customer notifies the Supplier within the warranty period set out in the Supplier’s Standard Warranty Terms and Conditions. The Supplier’s Standard Warranty Terms and Conditions shall apply to this agreement and will be made available to the Customer on request.
- The Supplier shall be entitled to inspect and test the goods, prior to agreeing to any liability as contemplated in clause 1.4 above, to ascertain if such defect in the goods can be attributed to the Supplier or whether there are any defects in the goods at all. If the defects in the goods are caused as result of the Customer’s conduct, alternatively if the Supplier finds that there are no defects in the goods then the goods will be returned to the Customer at the Customer’s cost.
- The Customer acknowledges that it has inspected the goods prior to purchase and further acknowledges that the Supplier does not warrant that the goods are fit for any particular purposes or use.
- The Customer indemnifies the Supplier in respect of any claims of third parties arising out of the supply or use of the goods by the Customer to the third party from any cause whatsoever and howsoever arising
The CPA Customer:
- The Supplier shall under no circumstances, except if gross negligence is proven, become liable to the CPA Customer for any direct or indirect damages or losses sustained by the CPA Customer, which are alleged to have been sustained by the CPA Customer as a result of defective goods or any delay or failure to deliver the goods.
Without prejudice to any other provision of clause 3.1, the Supplier’s liability on account of goods that are defective shall be that the CPA Customer will be entitled to elect one of the following remedies:
- the repair or replacement of the defective goods; or
- a refund of a reasonable portion of the purchase price paid for the goods.
- The returns and or refunds of defective goods shall be subject to the goods being in their original packaging and state.
- Returns for defective goods will be at the Supplier’s cost. The Supplier however reserves the right to inspect and test the defective goods to determine whether there is negligence, mishandling and/or misuse on part of the CPA Customer. Should this be the case then all warranties provided in this agreement or in terms of the CPA will be void.
- Upon delivery of the goods, the CPA Customer will be afforded a reasonable opportunity to examine the goods.
- The warranties as provided for in the Supplier’s Standard Warranty Terms and Conditions will run concurrently with the implied warranty period prescribed by the CPA.
- The CPA Customer indemnifies the Supplier in respect of any claims of third parties arising out of the supply of the goods by the Customer to the third party from any cause whatsoever and howsoever arising.
- The Customer:
- BREACH OF AGREEMENT
In the event that the Customer breaches any of the terms and conditions of this agreement, and remains in default after receipt of 7 (seven) days’ written notice requesting remedy of the breach, the Supplier shall be entitled without prejudice to its rights in law or in terms of this agreement to cancel the contract and claim damages or to claim specific performance of all the defaulting party’s obligations together with damages, if any, whether or not such obligations have fallen due for performance.
- This agreement represents the entire agreement between the Supplier and the Customer and shall govern all future contractual relationships between the Supplier and the Customer.
- The provisions of this agreement shall take precedence over any other terms or conditions that may be contained in any of the Customer’s documentation.
- No amendment and/or alteration and/or variation and/or deletion and/or addition and/or cancellation of these terms and conditions, whether consensual or unilateral or bilateral shall be of any force and effect unless reduced to writing and signed by a director of the Supplier authorised to sign a written agreement to amend, alter, vary, delete, add or cancel these terms and conditions.
- No relaxation or indulgence which the Supplier may give at any time in regard to the carrying out of the Customer’s obligations in terms of this agreement or any contract shall prejudice or be deemed to be a waiver of any of the Supplier’s rights in terms of this agreement or the relevant contract.
- The Customer shall not cede its rights nor assign its obligations.
- Either party shall be entitled to recover from the other party all costs incurred by it in enforcing any rights that it has hereunder, including any tracing and/or collection charges, costs on an attorney and own client scale, costs of counsel as on brief (whether incurred prior to or during the institution of legal proceedings), or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
- These terms and conditions and all modifications and amendments hereof, shall be governed by decided upon and construed under and in accordance with the laws of the Republic of South Africa.