1.1. In these terms and conditions of sale, the term Supplier refers to Grandmark International Proprietary Limited and the term Purchaser refers to the buyer/order placer.
1.2. These terms and conditions supersede all other conditions and are without prejudice to any surety, securities and/or guarantee(s) which the Supplier holds.
1.3. This contract constitutes the entire contract between the parties and no representation by any person or variations or consensual cancellations of or amendments to any of the terms and conditions hereof, shall be valid or binding on the Supplier unless reduced to writing and signed by an authorised representative.
1.4. To the extent that there is any conflict between these terms and a written agreement between the Supplier and the Purchaser in respect of a particular transaction, the terms of that agreement shall prevail.
Unless another price has been quoted by the Supplier, the price of the goods will be the Supplier’s current ruling price on the date of invoice to the Purchaser. The Supplier may vary any quoted price by adding thereto the increased cost to it resulting from any adverse fluctuation in the rate of exchange between the date of the quotation and the date of supply, or for any increase in costs occasioned by circumstances beyond the reasonable control of the Supplier.
3. Ownership and Goods
3.1. Notwithstanding the delivery of any goods to the Purchaser, ownership shall not pass until the Supplier has received payment in full of all and any indebtedness of the Purchaser to the Supplier and the Supplier shall be entitled to recover possession of the goods without notice and without the necessity to first cancel the contract of sale if payment of the amount owing to the Supplier is not effected on due date.
3.2. Notwithstanding the provisions of clause 3.1 above, the risk in all goods sold, shall pass to the Purchaser on delivery thereof.
4.1. The contract price shall be paid by the Purchaser without any deduction or set off, immediately, at the time of sale but before delivery, should the sale be a cash sale or should the sale be on credit within the period agreed upon on the terms and conditions of credit granted by the Supplier to the Purchaser..
4.2. If more than one delivery is made, then each delivery will be invoiced and paid for separately but otherwise in accordance with 4.1.
4.3. The Supplier shall be entitled to charge interest at the maximum rate allowed by law from time to time as provided for in the National Credit Act as amended, or in terms of any other applicable legislation.
4.4. Should the Purchaser default in paying its account, then the Supplier shall be entitled, but not compelled, to forthwith demand that the whole amount outstanding by the Purchaser from whatsoever cause arising will immediately become due and payable, notwithstanding the fact that a portion of the amount would not be owing in accordance with the agreed terms of payment.
4.5. Unless otherwise specifically agreed to by the Supplier, the Purchaser agrees that in the event of any dispute whatsoever of any amount as invoiced, the Purchaser shall nevertheless pay the invoice in full to the Supplier in accordance with these terms and conditions and the Supplier shall, after due investigation into the disputed amount, repay the Purchaser the amount that the Supplier has found to be due to the Purchaser.
4.6. Until the purchase price of the goods has been paid, the Purchaser shall ensure that the goods are adequately insured against the usual risks and produce conclusive proof of such insurance, whenever called upon to do so by the Supplier.
4.7. All direct payments must be deposited into the following bank account, which may be changed by the Supplier, from time to time on written notice to the Purchaser: Standard Bank, Account no: 012 367 532, Branch no: 012 645
5.1. Delivery shall be completed when goods are:
5.1.1. Off loaded at their destination, if goods are to be transported by means of the Supplier’s vehicle
5.1.2. When the goods are loaded, if the goods are to be transported by the Purchaser or a carrier engaged, whether by the Supplier or the Purchaser, to transport the goods to the Purchaser.
5.2. Should the Supplier, at the Purchaser’s request, agree to engage a carrier to transport the goods on behalf of the Purchaser, then:
5.2.1. The Supplier is authorised to engage a carrier on such terms and conditions, as it deems fit; but reasonable.
5.2.2. The Purchaser shall indemnify the Supplier against all demands and claims that may be made against it by the carrier so engaged and all liability that the Supplier may incur to the carrier arising out of the transportation of the goods.
5.3. The risk in and to the goods shall pass to the Purchaser, on delivery of the goods, to the Purchaser, its agent or carrier, referred to in 5.2 above.
5.4. If the Purchaser fails to take delivery of the goods on due date, then the risk in and to the goods shall immediately pass from the Supplier to the Purchaser and the Purchaser shall refund to the Supplier, on demand, the reasonable costs, including storage and insurance costs of keeping the goods during the period of that delay. Provided however that the Purchaser agrees that should it not collect and take delivery of the goods within 30 (thirty) days of notice to it by the Supplier to do so, the Supplier shall be entitled to remove and dispose of the goods as it sees fit and without any prejudice to it.
5.5. Unless the Purchaser requests authority for return of goods for credit (RFC), the Supplier shall be exempted from and shall not be liable under any circumstances for any complaints or claims for any alleged shortage or failure of the alleged goods to comply with the terms of contract.
5.6. The signature of any employee, representative or agent of the Purchaser, which appears on the Supplier’s official delivery note or waybill or the delivery note of any authorised independent carrier, will constitute conclusive evidence of delivery of goods purchased.
5.7. Notwithstanding any other provision in these terms and conditions to the contrary, the Supplier’s obligation to deliver the goods shall in all cases be subjected to the following conditions precedent:
5.7.1. Availability of stock to the Supplier.
5.7.2. The timeous receipt by the Supplier of any instructions pertaining to such goods.
5.8. Time shall not be the essence of the contract.
6.1. The Supplier warrants that the goods are only warranted against latent defects and bad workmanship for a period of 12 (twelve) months from the date of delivery.
6.2. All goods are sold “Voetstoots” in the condition in which they stand and all warranties, except as herein agreed or made, are expressly excluded.
6.3. No guarantee is given by the Supplier to the Purchaser as to the suitability of the goods sold for any particular purpose and the Purchaser must ensure before use or installation that the goods are suitable for the purpose for which they have been purchased.
6.4. The Purchaser must ensure upon delivery, that the goods listed on the sale document, invoice or delivery note, correspond in description, price and quantity, with the goods purchased by the Purchaser.
6.5. The Purchaser must at all times adhere to the user/manufacturer’s instructions.
7. Return of Goods
7.1. Prior authorisation from the Supplier’s authorised representative, who will allocate an authorisation number must be obtained, reflecting only one invoice or delivery note number per return.
7.2. The returned goods must be in its original packaging and in a resalable condition. Whether or not packaging conforms to this requirement, shall be determined by the Supplier in its sole discretion.
7.3. In order for the Purchaser to qualify for a credit, the goods must be returned to the Supplier within 7 (seven) days of receipt of the authorisation number referred to in clause 7.1.
7.4. The Supplier shall not accept special order goods for credit.
7.5. The Supplier may, but is not obligated to, accept the return of goods that were correctly supplied in accordance with the customer’s order. If it does so, the following conditions will apply:
7.5.1. The customer will be liable for a handling charge of 10% of the value of the order, at the Supplier’s discretion.
7.5.2. The handling charge will be deducted from any credit note issued to the customer by the Supplier.
7.6. The Supplier shall not give customers any cash refund for any goods returned for any reason whatsoever.
8. Dissolution of Partnership
The partners further agree that their liability to the Supplier shall be unaffected by any dissolution of the partnership in respect of any goods sold and delivered after such dissolution unless a written notice advising the Supplier of such dissolution has been duly delivered to the Supplier.
9. Landlord’s Lien
9.1. If the Purchaser leases its premises, then the Purchaser must notify The Supplier of this fact and must further notify its landlord that any goods bought from the Supplier belongs to the Supplier until they are fully paid for. The Supplier also has the right, but is not obliged, to notify the landlord thereof.
9.2. The Purchaser must provide the Supplier with the name and contact details of its landlord. The Purchaser must notify the Supplier of any changes to its landlord or their contact details and immediately provide the Supplier with the new information.
10.1. The Supplier’s liability to the Purchaser for any damages sustained by the Purchaser from any cause whatsoever, including any damage arising out of the Supplier’s negligence or in supply of goods or that of its agents, servants, employees or subcontractors shall in any event and under all circumstances, be limited to the replacement of goods which are found to be defective as at the date of delivery thereof, or the purchase price of such goods.
10.2. Except as provided for in clause 10.1 above, the Supplier shall under no circumstances whatsoever be liable for any loss or profits or damage, direct or indirect, consequential or otherwise, sustained by the Purchaser, whether or not caused by the negligence of the Supplier, its agents, servants, employees or sub-contractors.
10.3. The Purchaser shall not have any claim of any nature whatsoever against the Supplier for any failure by the Supplier to carry out any of its obligations under this contract as result of causes beyond the Supplier’s control.
11. Suspension of the Supplier’s obligation
If any amount owed by the Purchaser is not paid on due date, then without prejudice to any other right it may have, the Supplier may immediately suspend the carrying out of any of its uncompleted obligations until payment is made.
The Supplier may cancel this contract or any uncompleted part of it if the Purchaser commits a breach of any of the terms and conditions of this contract or, being an individual, dies or is provisionally or finally sequestrated, surrenders or makes application to surrender his estate or, being a partnership is terminated, or being a company or close corporation is placed under a provisional or final order of liquidation or Business Rescue, or has a judgment recorded against it which remains unsatisfied for seven days or compromises or attempts to compromise generally with any of its creditors. Upon the cancellation of the contract for any reason whatever, all amounts then owed by the Purchaser to the Supplier in terms of the contract shall become due and payable forthwith.
A certificate signed by any prescribed officer of the Supplier shall be prima facie proof of the amount due to the Supplier and shall constitute sufficient proof of such indebtedness for the purposes of provisional sentence and/or summary judgment or for any other purpose whatsoever.
Should it be necessary for the Supplier to institute legal proceedings against the Purchaser for any reason whatsoever, the Purchaser agrees to pay the legal costs incurred by the Supplier on the scale as between attorney and own client. Costs incurred shall include, but not be limited to, tracing costs, collection charges and the like.
The Purchaser nominates its business address as reflected on the credit application form or on the face hereof as its domicilium citandi et executandi for the service of notices and processes whether in connection with any claim for any sum due to the Supplier or otherwise.
16. Force Majeure
Neither party shall be liable to the other for any failure to perform any obligation under this Agreement which is due to an event beyond the control of such party including but not limited to any Act of God, terrorism, war, Political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood, health pandemic or any other natural or man-made eventuality outside of the control of either party, provided that such event could not have been reasonably foreseen. Any Party affected by such event shall forthwith inform the other Party of the same.
17. National Credit Act
These conditions of sale form part of the agreement entered into between the Supplier and the Purchaser which agreement in particular amounts to an incidental credit agreement as envisaged in terms of section 8(4)(b), read with section 1 of the National Credit Act, 2005 (Act 34 of 2005) [hereinafter referred to as the “NCA”]. The application of the NCA to the agreement entered into between the parties is therefore limited by virtue of the provisions of section 5 of the NCA. In the event of the Supplier’s attorneys having to cause delivery of a prescribed notice in terms of section 129(1)(a) of the NCA to the Purchaser, the Purchaser hereby elects either the postal or physical address, the latter having been chosen as domicilium citandi et executandi, as addresses where such delivery may be effected.
18. Waiver of Rights
Any indulgence or extension of time granted by the Supplier to the Purchaser in respect of any payment or the fulfilment of any obligations under this contract shall not be a waiver of the right of the Supplier to require, without notice, strict and punctual performance of all the provisions hereof.
19. Cession of Claim
The Supplier shall be entitled at its sole discretion to cede its claim without prior consent of the Purchaser. Upon notification by the Supplier that payment for the goods has been ceded, the Purchaser will become liable therefore to the cessionary.
20. Consent to Jurisdiction
The parties hereby consent to the jurisdiction of the Magistrate’s Court in respect of any proceedings arising from these conditions, irrespective of the amount claimed and/or value of the goods involved in such proceedings. The discretion as to the particular court lies with the Supplier.
21. Allocation of payments
Any payments received on account from the Purchaser shall be applied in the first instance to legal costs, if any, secondly interest owing, if any, and thereafter to the balance due for goods supplied.
22. Consent to obtain Credit information
The Purchaser consents to, and authorizes the Supplier at all times to, obtain from and furnish credit information concerning the Purchaser’s dealings with the Supplier to credit bureaux and to any third party seeking a trade reference regarding the Purchaser in his dealings with the Supplier.
23. Credit Facilities
The granting, extension, reduction or termination of credit facilities remains at all times at the sole and absolute discretion of the Supplier. Such facilities shall be granted subject to the Purchaser agreeing to the terms and conditions for such facility and such terms will be in addition to this terms and conditions of sale. In the event of a conflict between these terms and the terms and conditions of the credit facility, the terms associated with the credit facility will prevail.
24. Consumer Protection Act
In the event of the Consumer Protection Act being applicable to any sale of goods between the Supplier and the Purchaser then, to the extent that any condition of sale contained herein is in contravention of any provision(s) of the Consumer Protection Act, such condition shall not apply to the sale of goods in question.