TERMS AND CONDITIONS
1.1 “Carrier” means the third party carrier instructed to deliver the Products to the Customer.
1.2 “Conditions” shall mean the terms and conditions herein recorded.
1.3 “Contract” shall mean a contract of sale entered into between the Supplier and the Customer as detailed in clause 2.3 herein.
1.4 “CPA” shall mean the Consumer Protection Act 68 of 2008.
1.5 “Credit Act” shall mean the National Credit Act 34 of 2005.
1.6 “Customer” shall mean the legal entity or person whose further details can be found in clause 2 of the Terms and Conditions.
1.7 “Order” means an official and signed order request for Products by the Customer to the Supplier.
1.8 “Products” shall mean any goods and/or Products (including Special Order Products) supplied and/or services rendered, whether gratuitously or not, by the Supplier to the Customer.
1.9 “Parties” shall mean the Supplier and the Customer.
1.10 “Special Order Products” shall mean Products that are specifically made to order for the Customer.
1.11 “Supplier” shall mean C.E.L Concrete Products (Proprietary) Limited, a private company duly registered and incorporated according to the laws of the Republic of South Africa, registration number 2017/150244/07.
2. QUOTATIONS AND ORDERS
2.1 The Customer may place an Order in respect of Products in writing, which Order shall be deemed to be accepted by the Supplier only once such Order is confirmed in writing by the Supplier or the Supplier’s authorised representative.
2.2 Upon confirmation of an Order by the Supplier a contract of sale shall be deemed to have been concluded between the Customer and the Supplier, subject to these Conditions, in respect of the Products and the Customer shall be bound by these Conditions in all transactions for the purchase of the Products.
2.3 The Supplier objects to any varying terms proposed by the Customer in its Order or any other document of the Customer. Such varying terms shall not form part of the Contract without the express and written consent of the Supplier or authorised representative.
2.4 The giving of a quotation by the Supplier followed by the written acceptance of the Customer or payment by the Customer (whether it be partial payment or in full) shall constitute acceptance of the quotation and a binding contract of sale, subject to amendment by agreement in writing between the Parties.
2.5 In the event the Customer cancels an Order, the Supplier shall be entitled to claim a reasonable cancellation fee for any costs and expenses incurred by the Supplier as a result of the cancellation.
3.1 The prices of the Products are valid for a set period and shall be as stated in the Contract or the then current price applicable at the date of delivery, unless the Supplier varies such price by agreement between the parties after giving written notice to the Customer.
3.2 In the event of a variation by the Customer in the Products ordered, including delivery dates, the Supplier is entitled to vary the prices quoted.
3.3 In the event of a bona fide error or calculation or otherwise made by the Supplier in the quotation or Order, whether written or oral, the error may be amended by the Supplier.
4. SPECIAL ORDER PRODUCTS
4.1 All Orders for Special Order Products shall be subject to the Supplier’s Special Order Conditions as contained in the document attached and sent with the quotation.
4.2 In the event Products are specifically made to order for the Customer, the Supplier shall be entitled to ask for a deposit of up to 50% of the Order value.
4.3 In the event the Customer cancels the Order or fails to pay the balance of the Order by the required payment date for the Special Order Products, the Supplier shall be entitled to retain the deposit or in the event that no deposit is held by the Supplier, the Customer agrees to make payment to the Supplier of a penalty of 50% of the Order value, as pre-liquidated agreed damages within 30 days of the cancellation of the Order or within 30 days of the failure to make payment of the balance by the required date.
5. VALUE ADDED TAX
5.1 Unless specifically stated to the contrary, all prices shall be exclusive of Value Added Tax for which the Customer shall be liable to pay.
6. PRODUCT COLOURING AND DIMENSIONS
6.1 Colours and shades and product dimensions are approximate due to the fact that the raw materials are naturally sourced and mould wear occurs.
6.2 No claims will be entertained for Products supplied by the Supplier should they vary naturally in dimension or colour or shade from the information supplied on the Supplier’s web site or in any marketing material. Customers are advised to request samples or invited to inspect the Products before dispatch. Shades of the Products may vary from batch to batch.
6.3 In the event the Customer elects not to inspect the Products or request a sample, the Customer shall not be entitled to raise any complaint or seek to cancel the Order or refuse to make any payment on account of variations in the colour and dimensions or in respect of any texture complaint with regard to the Products.
7.1 The Supplier is not responsible for the delivery of the Products to the Customer.
7.2 The Customer shall elect whether it will collect the Products from the Supplier’s premises or instruct the Supplier, as agent of the Customer, to arrange a Carrier to attend to the delivery of the Products to the Customer’s nominated address.
7.3 In the event the Customer does not make an election in terms of clause 7.2, the Customer shall be deemed to have requested (and be liable for the costs of) the delivery of the Products and to have appointed the Supplier to act as its agent and to arrange for the delivery of the Products by the Carrier to the nominated address of the Customer.
7.4 It is specifically recorded that in arranging the delivery of the Products, the Supplier acts as the duly appointed agent of the Customer and that it shall not be liable for any damages or loss to the Products (consequential or otherwise) occasioned out of the loading, off-loading or conveyance of the Products. In this regard any claims for short delivery, non-delivery or damage must be made to the Carrier by the Supplier, on behalf of the Customer and payment on the due date may not be withheld on this account. Should the Supplier, for reasons of convenience, claim from the Carrier, this is understood to be on the Customer’s behalf and payment terms are unaffected.
7.5 Delivery of the Products shall be deemed to have taken place and constitute good delivery at the Supplier’s premises when the Products are presented for loading, either to the Customer or to the appointed Carrier.
7.6 Delivery dates quoted or provided by the Supplier to the Customer are an estimate and are not contractual obligations undertaken by the Supplier unless specifically agreed to by the Supplier in writing. This is notwithstanding any remarks to this effect on the face of the Order made by an agent or salesman of the Supplier.
7.7 The Customer shall ensure that there are no obstructions or items that are breakable or not clearly visible or items that cannot be driven over and that there is sufficient space, safe and proper access to the point at which the Products are to be off loaded and neither the Carrier nor the Supplier shall have any liability for any damages in this regard. The driver of the delivery vehicle, however, shall be entitled to refuse to proceed to the designated delivery point if, in his or her discretion, he or she considers it a risk to do so, in which event he or she shall be entitled but not obliged to offload the Products at the nearest safe point which shall thereupon be deemed to be the delivery address alternatively the driver shall be entitled to return the Products to the Supplier, at the Customer’s expense, and the Customer shall have to arrange for the collection of the Products.
7.8 Any form of acknowledgement of receipt by the Customer, an agent or any authorised representative or employee or by the Carrier, whether direct or indirect, in writing or otherwise shall serve as prima facie that the Products have been delivered to and received by the Customer in good condition and confirm delivery and be deemed to be accurate in all respects and binding on the Customer.
7.9 In the event of short delivery of the Products, the Customer shall forthwith upon delivery endorse the Supplier’s copy of the delivery note specifying details of the short delivery and thereafter within three (3) days of such delivery the Customer shall lodge a claim with the Supplier, who shall in turn lodge the claim with the Carrier on the Customers behalf, as indicated in clause 7.4 in respect of such short delivery.
7.10 In the event that the Products are delivered in a defective state, the Customer shall forthwith upon delivery endorse the Supplier’s copy of the delivery note detailing the defects to the Products and the Customer shall within three (3) days of such delivery notify the Supplier of such defects in the Products delivered.
7.11 On compliance by the Customer with 7.9 and 7.10 above and provided the Supplier agrees with the information supplied by the Customer, the Supplier will either make up the shortfall in the Products or replace the defective Products as the case may be;
7.12 Subject to the CPA, and notwithstanding the provisions of 7.4, 7.9, 7.10 and 7.11 above, the Supplier shall not be liable to the Customer for any loss or damage occasioned by reason of the circumstances in 7.4, 7.9 and 7.10 above;
7.13 The Customer shall be deemed to have accepted that the Products were delivered free of any defects unless the Customer informs the Supplier in writing within 21 (twenty one) days of delivery.
7.14 Unless the Customer has paid the Supplier in respect of the Products and, notwithstanding anything to the contrary herein contained, the Supplier shall have the right to suspend delivery at any time if in its sole discretion it considers that:
7.14.1 the amount owing by the Customer, whether due at that date or in the future, has reached the limit to which it is prepared to allow the Customer credit;
7.14.2 it comes to the attention of the Supplier that the financial position of the Customer has deteriorated;
7.14.3 the Supplier no longer considers the Customer creditworthy;
7.14.4 the Customer does not acknowledge that any contract is upon the terms set forth in these Conditions.
8.1 Notwithstanding delivery of the Products, ownership of all Products shall remain vested with the Supplier until such time as the purchase price due in respect thereof has been paid in full.
8.2 Until such time as title in the Products passes to the Customer, the Supplier shall be entitled to require the Customer to redeliver the goods to the Supplier, and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the goods.
8.3 Until such time as in accordance with this clause, the Products shall not be pledged or given as security or resold by the Customer.
8.4 The Customer shall reimburse the Supplier for any expenses and costs to the Supplier in recovering any Products arising from any non-compliance by the Customer with the terms of Clause 8.2.
8.5 The Supplier shall be entitled to notify the Customer’s Landlord (if applicable) that by virtue of the reservation of ownership of the Products in the Supplier, the Products may not become subject to the Landlord’s hypothec for rent outstanding.
9.1 The Supplier shall not be bound by any warranty, condition, undertaking or term, express or implied, as to the condition, quality, suitability, performance or fitness for a particular purpose of the Products not expressly provided for in these Conditions.
9.2 Subject to the CPA, the Supplier makes no representations whatsoever and gives no guarantees against latent or patent defects in respect of the Products and all conditions and warranties whatsoever whether implied or otherwise are hereby expressly excluded.
9.3 Subject to the CPA, the Supplier shall not incur any liability of whatever nature arising in contract or delict from any injury, loss or damage to any person or property arising from the use of the Products.
9.4 The Products supplied by the Supplier shall be suitable only for the purpose designed and the Customer shall ensure the Products are handled or used or otherwise dealt with in a normal and proper manner and where applicable, in a manner consistent with the instructions given by the Supplier.
9.5 Subject to the CPA, no claim shall lie against the Supplier arising out of or in connection with any defects in, or unsuitability of the Products.
10. FIT FOR PURPOSE
10.1 As stated in clause 9.1 above, no warranty or representation is made by the Supplier regarding the suitability of the Products supplied for any application whatsoever.
10.2 The Supplier is not aware of the intended use or application of the Products by the Customer and where the Products will be used and consequently it is the Customer’s sole responsibility to ensure that the correct Product is placed on Order and purchased from the Supplier in order to meet the Customer’s needs.
10.3 The Customer acknowledges that the Product in the Order is fit for the Customer’s purpose and that the Customer cannot cancel the Order of change his or her mind should the Customer’s needs change or the Product is not what the Customer had initially envisioned.
11. CLAIMS AGAINST THE SUPPLIER AND RETURNS
11.1 A Customer may not return Products for any reason whatsoever without having obtained the written consent of the Supplier and where such consent has been obtained the Customer will return the Products to the Supplier.
11.2 Products returned must be in the same condition and state as on collection or delivery, failing which credit will be passed at the rate applicable to “seconds”.
11.3 Returns accepted for credit will carry a 10% handling fee of the invoiced price.
11.4 The cost of transport for returned Products will be or the Customer’s account.
11.5 Under no circumstances will Products that have been unpacked, or installed be accepted for return or credit, it being the responsibility of the Customer to inspect the Products, either at the Supplier’s premises or immediately upon delivery (and most importantly prior to the application or use of the Products).
11.6 The Supplier shall not be liable in respect of any such claim unless written notice setting forth the nature, the claim and the amount claimed has been delivered to the Supplier within 14 (fourteen) days of the delivery of the Products in respect of which the claim is made.
12.1 Payment of the purchase price for Products delivered shall be made free of exchange in South African currency by means of a bank deposit or electronic funds transfer into the bank account of the Supplier, or such other place as the Supplier may from time to time nominate.
12.2 The Supplier shall at no stage accept payment in cash at its premises.
12.3 Payment shall be made by the Customer at least within 24 (twenty four) hours before the collection of the Products by the Customer, alternatively, within 24 (twenty four) hours of the anticipated date of delivery of the Products and ensure that such payment is reflected in the Supplier’s bank account prior to such collection or date of delivery.
12.4 If any amount due and payable by the Customer to the Supplier is in arrears, the Supplier shall be entitled to cease deliveries for the Customer of any Products until the account has been settled in full and the Supplier reserves the right to claim immediate payment on demand of all other amounts owing at that time, whether payments are due or not.
12.5 An amount not paid on the due date shall, at the discretion of the Supplier, bear interest in accordance with the rate stipulated and the provisions of the National Credit Act No 34 of 2005 (“NCA”) from the due date until it is paid in full.
12.6 Should the Customer not be regarded as a consumer in terms of the CPA then, a certificate provided by the Supplier’s Credit Manager or Accountant showing the amount due by the Customer shall be prima facie proof of any amount owing by the Customer for the purposes of all legal proceedings against the Customer.
13.1 Subject to the NCA, if applicable, the Supplier shall in its sole and absolute discretion be entitled to alter any credit terms granted to the Customer and the Supplier shall be entitled to ask the Customer, who shall be obligated, to provide guarantees to secure payment of the purchase price.
14.1 The Supplier, its officers, employees or agents shall not be liable under any circumstances whatsoever for any loss or damage of any nature whatever (excluding gross negligence), whether direct or indirect, consequential or otherwise, sustained by the Customer as a result of any cause in connection with any business (including without limitation, any cause in connection with Products sold or the use, resale or other deposal of those Products or anything done pursuant to the contract), whether such loss or damage results from breach of contract (whether total, fundamental or otherwise), delict, negligence or any other cause.
15.1 Should the Customer be in breach of its obligations in terms of this Contract, the Supplier shall be entitled, with 5 (five) days written notice to the Customer and without prejudice to any of its rights and without incurring any other rights, to cancel this Contract and/or any part thereof and to claim return of the Products in terms thereof, or to claim from the Customer immediate payment of any monies due by the Customer to the Supplier notwithstanding any earlier agreement for credit, whether same is due for payment or not.
16.1 The Conditions shall be governed in all respects by, and shall be construed according to the laws of the Republic of South Africa.
16.2 Unless the National Credit Act No 34 of 2005 is applicable, in the event of the Supplier instructing its attorneys to recover money or Products from the Customer the Customer shall be liable for and pay all legal costs incurred by the Supplier on the attorney and own client scale, including any collection commission and tracing agents fees.
16.3 These Conditions constitute the whole agreement between the Parties relating to the subject matter hereof.
16.4 No addition to or variation or consensual cancellation of these Conditions, including this clause, has effect unless in writing and signed by the Parties.
16.5 Neither Party may cede or assign its rights or obligations in terms of this agreement without the prior written consent of the other Party which shall not be unreasonably be withheld.
16.6 Any notice by the Supplier shall be given in writing to the Customer at the address at which the Products are delivered, which address the Customer chooses as its domicilium citandi et executandi. The Customer undertakes to promptly inform the Supplier of any change to any details contained in this Credit Facility form.
16.7 If any provision of these Conditions are in conflict with the NCA or CPA and unenforceable or invalid under law, the remaining substance of such provision and remaining provisions of these Conditions shall continue to be binding and in full force and effect provided the essential economic benefits of this Conditions are retained.
16.8 Force Majeure – other than with respect to Customer’s obligations to make payments to the Supplier in a timely manner, neither the Customer nor Supplier will be liable in damages for any delay or default in performing any obligation hereunder if that delay or default is due to any cause beyond the reasonable control and without fault or negligence of that Party.
By signing the above, I confirm that I understand the above information and I have exercised my choice voluntarily and the clauses as indicated in bold, have been drawn to my attention and that I have had adequate opportunity to read and comprehend the terms and conditions and that I understand and agree to be bound by them.