Definitions: In these Conditions, the following words shall have
the following meanings:
Business Day: a day other than a Saturday, Sunday, bank or public
holiday in South Africa;
Buyer: the purchaser of the Goods from the Supplier.
Contract: the contract between the Supplier and the Buyer for the
sale and purchase of the Goods in accordance with these Conditions, which shall
comprise these Conditions, the relevant Order and any other documents
incorporated into these Conditions by reference.
Delivery Point: the location set out in the Order or such other
location as is agreed in writing between the Supplier and the Buyer. In the
absence of any location specified in the Order or otherwise agreed between the
Parties, the Delivery Point shall be the Buyer’s address.
Force Majeure Event: as defined in condition 13.
Goods: the goods (or any part of them) set out in the Order.
Group: means in relation to a company, that company, each and any
subsidiary or holding company from time to time of that company, and each and
any subsidiary from time to time of a holding company of that company.
Holding company and subsidiary: means a “holding
company” and “subsidiary” as defined in the Companies Act 71 of
2008.
Manufacturer: the manufacturer of the relevant Goods.
Manufacturer’s Specifications: any description or specification
for the Goods included in any catalogues, brochures or other materials
published by or on behalf of the Manufacturer.
Order: the Buyer’s order for the Goods, as set out in the online
order form submitted by the Buyer, the Buyer’s purchase order form, the Buyer’s
written acceptance of the Supplier’s quotation, overleaf, or as otherwise
submitted by the Buyer to the Supplier, as the case may be.
Returned Goods: all Goods returned to the Supplier in accordance
with condition 9.
Supplier: DENFO Project Management cc (including all “trading as”
brands)
2.
THE
CONTRACT
These Conditions apply to the Contract to the exclusion of any
other terms that the Buyer seeks to impose or incorporate, or which are implied
by trade, custom, practice or course of dealing.
The Order constitutes an offer by the Buyer to purchase the Goods
in accordance with these Conditions.
The Order shall only be deemed to be accepted when the Supplier
issues a written acceptance of the Order, or, if earlier, when the Supplier
dispatches the relevant Goods for delivery, at which point the Contract shall
come into existence.
Any quotation for the Goods provided by the Supplier shall not
constitute an offer. Unless otherwise expressly set out therein, a quotation
shall only be valid for a period of 14 days from the date of issue. Any
acceptance by the Buyer of a quotation from the Supplier shall constitute an
Order (which is subject to acceptance by the Supplier in accordance with these
Conditions).
No terms or conditions endorsed on, delivered with or contained in
the Buyer’s purchase order, order confirmation, specification or other document
shall form part of the Contract.
No variation to these Conditions shall have effect unless
expressly agreed in writing by the Supplier and the Buyer.
3.
DESCRIPTION
The quantity and description of the Goods shall be as set out in
the Order.
The Supplier shall have no liability in respect of and does not
provide any warranty in relation to the Manufacturer’s Specifications, whether
the same have been supplied by the Supplier to the Buyer or not.
4.
PRICE
The price payable for the Goods shall, unless otherwise expressly
agreed in writing between the Supplier and the Buyer, be the price set out in
the Order, or, if no price is set out in the Order, the price set out in any
quotation provided by the Supplier to the Buyer which has been accepted by the
Buyer within the time period for acceptance as referred to in condition 2.4
(where such a quotation exists), or where no such quotation exists, the price
set out in the Supplier’s published list as at the date when the Order is
submitted to the Buyer.
The price of the Goods is exclusive of all taxes (including
without limitation value added tax), duties and levies (or local equivalents),
which shall be payable by the Buyer, subject to receipt of an invoice, at the
applicable rates.
The price of the Goods is exclusive of the costs of carriage and
insurance to the Delivery Point, which shall be payable by the Buyer and the
Buyer shall be responsible for off-loading the Goods at the Delivery Point.
The Supplier may, by giving notice to the Buyer at any time before
delivery increase the price of the Goods to reflect any increase in the cost of
the Goods that is due to:
any factor beyond the Supplier’s control (including foreign
exchange fluctuations, increases in taxes and duties and increases in labour,
materials and other manufacturing costs);
any request by the Buyer to change delivery date(s), Delivery
Point, quantities or types of Goods ordered; or
any delay caused by any instructions of the Buyer or failure of
the Buyer to give the Supplier adequate or accurate information or
instructions.
5.
PAYMENT
The Supplier may invoice the Buyer for the Goods and any costs in
respect of carriage and / or insurance payable by the Buyer on or at any time
following acceptance of the Buyer’s Order for the Goods.
The Buyer shall pay the invoice in full without any deduction or
set off immediately upon confirmation of the Order, via electronic funds
transfer, directly into the nominated bank account of the Supplier, as per the Supplier’s
invoice.
If it is agreed that the Delivery Point is to be outside the
Republic of South Africa, the Buyer shall pay to the Supplier the taxes, duties
and levies referred to in condition 4.2 on the date of the relevant invoice in
respect of the same, unless, the Supplier has agreed to an alternate condition
below.
The Supplier may at is sole discretion and without liability to
the Buyer refuse to fulfil an Order, including any order that it has accepted,
whilst any invoice issued by the Supplier to the Buyer remains overdue and
payable.
It is agreed that payments may be made via Visa, Mastercard;
Diners or American Express credit cards or by bank transfer into the Supplier’s
bank account, as per Condition 5.2 above.
6.
DELIVERY
The Supplier shall deliver the Goods to the Delivery Point.
Delivery of the Goods shall be completed when the Goods arrive at
the Delivery Point (subject to the Buyer’s right to refuse delivery in
accordance with condition 6.5).
Any dates quoted or accepted by the Supplier for delivery of the
Goods are approximate only, and the time of delivery is not of the essence. The
Supplier shall not be liable for any delay in delivery of the Goods that is
caused by a Force Majeure Event or the Buyer’s failure to provide the Supplier
with adequate delivery instructions or any other instructions which are
relevant to the supply of the Goods.
If the Goods have not been delivered by the date or, if relevant,
by the end the time period given by the Supplier as the approximate date/period
for delivery from time to time then, unless the delay is caused by a Force
Majeure Event or the Buyer’s failure to provide the Supplier with adequate
delivery instructions or any other instructions which are relevant to the
supply of the Goods or the Goods have not been delivered to the Buyer for the
reasons stated in condition 6.6, then the Buyer shall be entitled to give
written notice to the Supplier requiring the Supplier to deliver the Goods
within not less than 30 days following receipt of such notice, whereupon, if
the Supplier fails to comply, the Buyer may terminate the Contract on written
notice to the Supplier.
The Supplier shall use its reasonable endeavours to keep the Buyer
reasonably informed of the anticipated time and date of delivery and the Buyer
shall accept delivery of the Goods at the Delivery Point provided that it has
received not less than 24 hours’ notice of such delivery. If it has received
less than 24 hours’ notice then, unless the delivery is being made on the
delivery date or within the delivery period specified in the Order or otherwise
agreed between the Parties, then the Buyer may refuse to accept delivery if it
not reasonable to expect the Buyer to accept delivery on that date taking into
account the Buyer’s ability to grant access to the Delivery Point on that date
and any material inconvenience to the Buyer in complying.
If the Buyer either fails to take delivery of the Goods delivered
in accordance with condition 6.5 or if the Buyer fails to accept delivery of
any of the Goods at the Delivery Point (except in circumstances where it is
reasonable for the Buyer to refuse to accept delivery as set out in condition
6.5), then the Supplier may store the Goods until delivery is effected and the
Buyer shall be liable for all reasonable costs, expenses and loss incurred by
the Buyer in connection with such failure including, without limitation,
additional transport costs, storage costs and insurance costs.
The Supplier may deliver the Goods by instalments. Each instalment
shall be invoiced and paid for in accordance with the provisions of the
Contract and shall be a separate Contract. No cancellation or termination of
any one Contract relating to an instalment shall entitle the Buyer to repudiate
or cancel any other Contract or instalment.
7.
NON-DELIVERY
The quantity of Goods as recorded by the Supplier on the proof of
delivery signed by the Buyer shall be conclusive evidence of the quantity
received by the Buyer on delivery unless the Buyer can provide conclusive
evidence proving the contrary.
Any liability of the Supplier for non-delivery of the Goods shall
be limited to replacing the Goods within a reasonable time or issuing a credit
note at the pro rata rate against any invoice raised for such Goods. The
Supplier shall have sole discretion in deciding whether to replace Goods or
issue a credit note in accordance with this condition
8.
RISK
/ TITLE
The Goods are at the risk of the Buyer from the time of delivery.
Title in the Goods shall not pass to the Buyer until the Supplier has received
in full (in cash or cleared funds) all sums due to it in respect of the Goods
and all other sums which are or which become due to the Supplier from the Buyer
on any order.
Until title in the Goods has passed to the Buyer, the Buyer shall:
hold the Goods on a fiduciary basis;
store the Goods (at no cost to the Supplier) separately from all
other goods of the Buyer or any third party in such a way that they remain
readily identifiable as the Supplier’s property;
not destroy, deface or obscure any identifying mark on or relating
to the Goods;
maintain the Goods in satisfactory condition and keep them insured
on the Supplier’s behalf for their full price against all risks to the
reasonable satisfaction of the Supplier. On request the Buyer shall produce the
policy of insurance to the Supplier;
notify the Supplier immediately if it becomes subject to any of
the events listed in condition 8.3; and
give the Supplier such information relating to the Goods as the
Supplier may require from time to time;
the Supplier shall have the right, immediately upon the Supplier
being of the belief that the Buyer has not complied with the provisions of this
clause 8, or has not or will not affect payment in terms of clause 5, to
immediately, without any further notice, reclaim possession of the Goods
without any prejudice to any of its rights in terms of this agreement.
If title to the Goods has not passed to the Buyer, the Buyer’s
right to possession of the Goods shall terminate immediately if:
the Buyer becomes sequestrated, liquidated or is placed into
business rescue or makes an offer of compromise with its creditors; or
the Buyer suffers or allows any execution, whether legal or
equitable, to be levied on its property or obtained against it, or is unable to
pay its debts; or
generally, commits any act of insolvency as defined in the
Insolvency Act No. 24 of 1936;
any event occurs, or proceeding is taken, with respect to the
Buyer in any jurisdiction to which it is subject that has an effect equivalent
or similar to any of the events mentioned in conditions 8.3.1 to 8.3.2; or
the Buyer encumbers or in any way charges the Goods; or
the Buyer suspends, threatens to suspend, ceases or threatens to
cease to carry on all or substantially the whole of its business; or
the financial position of the Buyer deteriorates to such an extent
that in the opinion of the Supplier the capability of the Buyer adequately to
fulfil its obligations under the Contract has been placed in jeopardy.
If before title to the Goods passes to the Buyer the Buyer becomes
subject to any of the events listed in condition 8.3, or the Supplier
reasonably believes that any such event is about to happen and notifies the Buyer
accordingly, then, provided that the Goods have not been resold, or irrevocably
incorporated into another product, and without limiting any other right or
remedy the Supplier may have, the Supplier may at any time require the Buyer to
deliver up the Goods or may enter (pursuant to condition 8.5) any premises of
the Buyer or of any third party where the Goods are stored in order to recover
them.
The Buyer grants the Supplier, its agents and employees an
irrevocable licence at any time to enter the Delivery Point and any premises
where the Goods are or may be stored in order to inspect them, or, where the
Buyer’s right to possession has terminated, to remove and recover them.
On termination of the Contract, howsoever caused, the Supplier’s
rights contained in this condition 8 shall remain in effect.
9.
RETURNS
AND REFUNDS
All claims of damage present on delivery and claims that the
warranty in condition 10 has been breached must take place in accordance with
the provisions of this condition 9 and the Supplier’s Return Policy in force
from time to time a copy of which can be obtained from the Supplier’s order
management team, or on the Supplier’s website.
If the Buyer considers that any Goods delivered to the Buyer were
damaged on delivery or not in compliance with the warranty in clause 10 the
following process must be followed:
The Buyer must notify the Supplier in writing within 10 Business
Days of the damage or the alleged breach of warranty. Such notice must include
details of the Goods alleged to be damaged or in breach of warranty, the Order
to which the Goods relate and details of the damage or alleged breach of
warranty.
On receipt of notice in accordance with condition 9.2.1 above, the
Supplier’s technical support team will contact the Buyer and request that tests
are performed by the Buyer in accordance with the instructions of the
Supplier’s technical support team (“Phase One Testing”).
If the Phase One Testing does not provide a conclusive result,
then a returns order will be generated by the Supplier and the Goods must be
returned to the Supplier in accordance with the Supplier’s instructions for
further testing (“Phase Two Testing”).
If either Phase One Testing or Phase Two Testing reveals that the
Goods are damaged or in breach of the warranty in clause 10, the Supplier may
at its sole discretion provide the Buyer with a credit note for the full price
of the Return Goods, excluding any delivery charges, duties, taxes or other
charges or provide the Buyer with replacement Goods (whereupon it shall have no
further liability for a breach of the warranty in condition 10.3 in respect of
such Goods).
If the results of Phase One Testing and/or Phase Two Testing
reveal that there is no damage or breach of the warranty in clause 10, the
Supplier will not accept return of the Goods and will not issue any credit note
in respect of such Goods. If the Goods are in the possession of the Supplier
then the Buyer must collect the Goods, at its own cost and risk within one
calendar month of notification that there is no damage or breach of warranty.
If the Buyer fails to collect the Goods within one month of notification that
there is no damage or breach of warranty, the Supplier will be entitled to sell
the Goods to another party will full title guarantee. No refund will be issued
to the Buyer.
The Supplier shall have no liability in respect of damage or
breach of warranty in the Goods arising or caused on or after delivery has
occurred.
If the Goods are not damaged or in breach of the warranty in
clause 10 but the Buyer decides that they no longer want Goods that have been
ordered and delivered and would like to return them to the Supplier, then the
following steps must be taken:
The Buyer must notify the Supplier in writing within 10 Business
Days that they wish to return Goods. This notice must be submitted in writing
to the seller.
The Return Goods to be returned in accordance with condition 9.3.1
must be returned to the Supplier’s Premises within 15 Business Days of
delivery. Such return is to take place between the hours of 9.00am and 5.00pm
on a Business Day and at the cost and risk of the Buyer.
All Return Goods must be correctly packaged and labelled with the
unique order return number generated following submission of the return order
form in accordance with condition 9.3.1 above.
Once Return Goods are received by the Supplier, they will be
checked by a member of the Supplier’s return team. Provided that the Return
Goods have been returned in accordance with the provisions of this condition
9.3 and the Return Goods are in re-saleable condition, a credit note of 75% of
the value of the Goods (including VAT) will be issued.
If any Goods are delivered to the Buyer in error, the Buyer agrees
that it shall notify the Supplier within 10 days of delivery. In the event of a
genuine error on the part of the Supplier, the Supplier will arrange for the
incorrect Goods to be collected. Until the incorrect Goods are collected, they
must be stored in accordance with condition 8.
Any cash refund to be made under this condition 9 will be made by
electronic transfer to the account from which payment was originally made. The
Supplier will aim to process any refund so that it reaches the Buyer’s account
within 28 Business Days of the Supplier confirming that a refund will be made.
Notwithstanding the contents of condition 9.5 above, if the
Supplier has delivered the Goods as a result of direct marketing and the Buyer
has cancelled the agreement during the cooling off period, or if the Buyer did
not have an opportunity to examine the Goods before delivery, and has rejected
same on delivery, the Supplier shall refund the Buyer with 10 Business Days of
confirmation of such cancellation or rejection. The provisions of this clause
shall not apply where the Goods have been disassembled, altered, permanently
installed or combined with other Goods or where there is a public regulation
prohibiting the return of the Goods. If the Goods have been used or need to be
repackaged, the Supplier may charge the Buyer a reasonable amount for such
inconvenience.
Any replacement Goods to be sent to the Buyer will be delivered in
accordance with the delivery procedure in condition 6.
The Supplier shall have no liability in respect of any costs
incurred in respect of the de-installation and / or re-installation of
replacement Goods, including but not limited to the cost of any equipment
and/or labour required.
The Buyer shall not be entitled to return any Goods which are not
suitable for their purpose, if for reasons of public health or public
regulation such returns are prohibited, or, after having been supplied to the
Buyer, the Goods have been partially or entirely disassembled, altered or
combined with other goods or property.
10. WARRANTY
Each of the sub-conditions in condition 10 shall be treated as
separate and independent.
The Supplier hereby excludes to the fullest extent permitted by
law all warranties, conditions and other terms implied by statute, common law
or otherwise.
The Supplier warrants that on delivery, the Goods shall be free
from material defects in design, material and workmanship.
Subject to conditions 10.5 and 10.6, if the Buyer considers the
warranty in condition 10.3 to have been breached, it agrees that it shall
follow the process detailed in condition 9.2.
The Supplier shall not be liable for any failure to comply with
the warranty set out in condition 10.3 if:
the Buyer makes any further use of such Goods after giving notice
in accordance with condition 10.4; or
the defect arises because the Buyer failed to follow the
Supplier’s or the Manufacturer’s oral or written instructions as to the
storage, commissioning, installation, use and/or maintenance of the Goods or
(if there are none) good trade practice; or
the Buyer alters or repairs such Goods without the written consent
of the Supplier;
the defect arises as a result of fair wear and tear, wilful
damage, negligence by the Buyer or any third party, or abnormal storage or
working conditions.
The warranties contained in condition 10.3 do not include:
any equipment, materials or supplies not supplied by the Supplier,
damage or loss of function sustained during periods with wind
speeds exceeding 60 metres/second or submersion in water unless the Goods are
designed to operate in such conditions,
any accidental loss or damage not caused by the Supplier or any
loss or damage caused by any acts of God or any loss or damage to the extent
contributed by any acts of God.
These Conditions apply to any repaired or replacement Goods
supplied to the Buyer.
Except as provided for in this condition 10, the Supplier shall
have no liability to the Buyer in respect of the Goods’ failure to comply with
the warranty set out in condition 10.3. Subject to condition 9.1, the Buyer’s
sole remedy in respect of a breach of the warranty in condition 10.3 shall be
as set out in condition 10.4 and subject to the requirements imposed upon the
Buyer in condition 10.4.
The Buyer warrants that it has read and familiarised itself with
the provisions of Sections 60 and 61 of the Consumer Protection Act 68 of 2008,
and that it agrees that the procedures set out in conditions 9 and 10 of this
Contract are in accordance with such provisions.
11. LIMITATION OF LIABILITY
Nothing in these Conditions excludes or limits the liability of the
Supplier or any member of its Group:
for death or personal injury caused by the Supplier’s negligence;
or
for any matter which it would be illegal for the Supplier to
exclude or attempt to exclude its liability; or
for fraud or fraudulent misrepresentation.
Subject to condition 11.1, neither the Supplier nor its Group
shall be liable to the Buyer, whether in contract, delict (including
negligence), breach of statutory duty, or otherwise, for any indirect or
consequential loss arising out of and / or in connection with this Contract
including any losses that result from the Supplier’s and/or its Group’s
deliberate personal repudiator breach of the Contract.
Subject to condition 11.1, neither the Supplier nor its Group
shall be liable to the Buyer, whether in contract, delict (including
negligence), breach of statutory duty, or otherwise, for:
any loss of profit;
any loss of business or opportunity;
any loss of anticipated savings;
any loss of energy supply; or
any costs of and / or associated with de-installation and / or
re-installation of Goods.
Subject to conditions 11.1, 11.2 and 11.3 the maximum aggregate
liability of the Supplier and its Group, together, to the Buyer in respect of
all losses arising under and / or in connection with the Contract, whether in
contract, delict (including negligence), breach of statutory duty, or otherwise
shall not exceed 125% of the price paid or payable by the Buyer for the
relevant Goods.
The Buyer expressly acknowledges that by entering into contract
with the Supplier it acknowledges and agrees (i) to the exclusions and
limitations of liability set out herein and (ii) that the price which has been
agreed for the Goods reflects the level of liability accepted by the Supplier.
The Buyer further acknowledges that it is its own responsibility to seek legal
advice on the meaning and effect of these exclusions and limitation of
liability and that it is able to and should seek to protect itself against any
potential loss or damage which is not recoverable from the Supplier by means of
obtaining insurance from third party providers.
12. COMMUNICATIONS
The Buyer chooses as its domicilium citandi et executandi the
addresses and email addresses inserted in the online application form.
13. FORCE MAJEURE
Neither Party shall be liable to the other Party in respect of any
of its obligations in terms of the Contract, if such Party is prevented from
fulfilling its obligations due to circumstances beyond its reasonable control.
14. ENTIRE AGREEMENT
The Contract constitutes the whole agreement between the Parties
and supersedes all previous agreements between the Parties relating to its
subject matter.
Each party acknowledges that, in entering into the Contract, it
has not relied on, and shall have no right or remedy in respect of, any
statement, representation, assurance or warranty (whether made negligently or
innocently) that is not set out in this Contract. Each party agrees that it
shall have no claim for innocent or negligent misrepresentation or negligent misstatement
based on any statement in this Contract.
Nothing in this condition shall limit or exclude any liability for
fraud.
15. ASSIGNMENT AND SUBCONTRACTING
The Supplier may at any time assign or transfer all or any of its
rights under the Contract.
The Buyer may not assign or transfer or purport to assign or
transfer all or any of its rights or obligations under the Contract without the
prior written consent of the Supplier.
The Supplier may subcontract or delegate in any manner any or all
its obligations under the Contract to any third party or agent provided that
the Supplier shall remain liable for such performance.
16. GENERAL
Failure or delay by the Supplier in enforcing or partially
enforcing any provision of the Contract shall not be construed as a waiver of
any of its rights under the Contract. Any waiver by the Supplier of any breach
of, or any default under, any provision of the Contract by the Buyer shall not
be deemed a waiver of any subsequent breach or default and shall in no way
affect the other terms of the Contract.
If any provision or part-provision of this agreement is or becomes
invalid, illegal or unenforceable, it shall be deemed modified to the minimum
extent necessary to make it valid, legal and enforceable. If such modification
is not possible, the relevant provision or part-provision shall be deemed
deleted. Any modification to or deletion of a provision or part-provision under
this condition shall not affect the validity and enforceability of the rest of
this agreement.
The Supplier shall take all reasonable steps to protect the
personal information of the Buyer. For the purposes of this clause, “personal
information” shall be defined as detailed in the Promotion of Access to
Information Act 2 of 2000.
17. CERTIFICATE OF BALANCE
The Buyer agrees that the amount due and payable to the Supplier
may be determined and proven by a certificate issued and signed by any director
or manager or member or partner of the Supplier, whose authority need not be
proven or by any independent auditor nominated by the Supplier. Such
certificate shall be binding and shall be proof of the indebtedness of the
Buyer, and the Buyer shall bear the onus of proving that the amount is not due
and payable.
18. DISPUTE RESOLUTION
The Parties shall negotiate in good faith to settle any dispute
that arises out of this agreement.
In the event of the Parties not being able to settle any dispute,
either party may approach a court of competent jurisdiction
In addition, the Parties may agree to arbitration, and shall
conclude a written agreement to arbitrate within 7 (seven) days of the dispute
arising, which shall contain all the details of the arbitration process.
19. LEGAL COSTS
Each party shall bear its own costs incurred in connection with
the negotiation, drafting and execution of this agreement.
The legal costs
incurred by either party in enforcing their rights in terms of this agreement,
shall be claimable against the other party on the scale as between the
agreement between the successful party and its attorneys.
