Terms and Conditions
WHERE AS the customer has entered into a transaction constituting the purchase of moveable goods from the Company.
NOW THEREFORE the parties enter into this sale agreement on the following terms and conditions;
1. DEFINITIONS
The following terms shall have the meaning assigned to them hereunder and cognate
expressions shall have the corresponding meanings, namely –
1.1 “the agreement” shall mean this agreement constituted by the Customers acceptance of the terms and conditions herein contained.
1.2 "the Company" shall mean Blue Lemon Trading (Pty) Ltd
1.3 “goods” shall mean the durable, movable goods selected by the Customer as more fully described in the schedule hereto.
1.4 “schedule” means any schedule, including a tax invoice entered into between the Customer and Company in respect of which goods have been purchased by the Customer from the Company.;
1.5 “purchase price” shall mean the amount payable by the Customer to the
Company as contained in a Tax Invoice.
2. PURCHASE PROCEDURE AND DELIVERY:
In the event of the Customer wishing to purchase goods, the following procedure is to implemented:
2.1The Customer shall complete and sign all and any documentation prescribed by the
Company from time to time.
2.2 The Customer shall furnish to the Company all and any documentation required by the
Company in order to give effect to this Agreement.
2.3 Upon receipt of the Agreement and attached quote, the Customer shall notify the Company of its
willingness to enter into a sale agreement with the Company.
2.4 Quotes will remain valid for a period of 7 days from the date of the quote unless otherwise indicated.
2.5The validity of any price quoted is subject to goods availability and to any increases in the cost price, including currency fluctuations before dispatch of the goods.
2.6 The written acceptance by the Customer of the terms and conditions stated in this Agreement shall constitute a valid and binding Sale Agreement;
2.7 On conclusion of this Agreement, the Company shall provide written times of Delivery, installation and performance times, which the Customer acknowledges is merely estimates and are
not binding on the Company.
2.8 All orders are subject to cancellation by the Company due to force majeure from any cause beyond the control of the Company, including (without restricting this clause to these instances); inability to secure labour, power, materials or supplies, or by reason of an act of God, war civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought
2.9 All orders or variations to orders will be binding and subject to the terms of this agreement and
may not be cancelled.
2.10 The Company shall be entitled in its sole discretion to split the delivery/performance of the goods in the quantities and on the dates it deems fit.
2.11 The Company shall be entitled to invoice each delivery/performance in separate batches.
2.12 Any delivery note (copy or original) signed by the Customer or a third party engaged to transport the goods and held by the Company shall be conclusive proof that delivery was made to the Customer and the goods are delivered free from defect..
2.13 If the Company agrees, at the request of the Customer to engage a third party to transport the goods, the Company is authorised to engage a third party on the Customers behalf and on the terms
deemed fit by the Company.
2.14 The Customer agrees to indemnify the Company against any claims that may arise from such
agreement in 2.13 above.
2.15 It is the duty of the Customer to return any defective goods to the premises of the Company at the
Customer's own cost.
2.16 All goods taken on a consignment basis by the Customer is deemed sold if not returned within 60 days of issue in a perfect condition, in the original packaging.
2.17 All goods supplied by the Company remain the property of the Company until such goods have
been fully paid for.
2.18 Defective or incomplete delivery or the failure of any supplier to make good any breach or fulfil any warranties, guarantees or representations, will in no way affect the Customer's obligations and he will continue to fulfil all his obligations in terms hereof as if no such defective or incomplete delivery or failure had occurred. If the goods are subject to any manufacturer’s or supplier’s guarantee or warranty, the Customer is entitled to cession of the Companies rights there in.
3. PAYMENT
3.1 The Customer agrees to pay the amount on the Tax invoice at the offices of the Company (a) cash on order: or (b) if the Customer is a Credit Approved Customer, within the granted credit period as specified on the Credit Application after a Tax invoice is issued by the Company.
3.2 Notwithstanding the contents above, and without prejudice to any rights that the Company may have in terms of this Agreement and/or in law, the Company shall in the event of it not receiving payment as stated above, be entitled at its sole discretion, to extend the payment date and any other terms relating thereto.
3.3 The Customer has no right to withhold payment for any reason whatsoever.
3.4 The Customer is not entitled to set off any amount due to the Customer by the Company against this debt.
3.5 All deposits and/or discounts will be forfeited if payment in full is not made on the due date.
3.6 The Customer agrees that interest shall be payable on any monies due to the Company at the maximum legal interest rate prescribed in terms of the National Credit Act, from the date they fall due. In the case of late payment interest shall be calculated from the date of order.
3.7 The Customer agrees that if an account is not settled in full (a) against order; or (b) within the period agreed to in the case of a Credit Approved Customer; the Company is: (I) entitled to immediately institute action against the Customer at the sole expense of the Customer; or (II) to cancel the agreement and take possession of any goods delivered to the Customer and claim damages.
3.8 In the event of cancellation of the order, the Customer shall be liable to pay (a) the difference between the selling price and the value of the goods at the time of repossession and (b) all other costs incurred in the repossession of the goods. The value of repossessed goods will be deemed to be the value placed on them by any sworn valuator after such repossession and such valuation will be conclusive proof of the value.
3.9 The Customer irrevocably authorises the Company to enter its premises to repossess any goods delivered, in the case of non-payment and indemnifies the Company completely against any damage whatsoever relating to the removal of repossessed goods.
3.10 The Company is entitled to appropriate any payment received from or on behalf of the Customer to any indebtedness of the Customer to the Company from whatever cause arising.
4.WARRANTIES FURNISHED BY THE CUSTOMER
The Customer warrants (and each warranty shall be deemed to be a material warranty relied upon by the Company in concluding this agreement) that:
4.1 the goods were selected by him;
4.2 the Company or anyone on it's behalf has not given any warranties, guarantees or undertakings of whatever nature as to the quality of the goods or their fitness for the purpose for which they were sold nor has any representation of any nature been made to induce the Customer to enter into this agreement;
4.3 the goods are sold in the condition as they now stand;
4.4 The Customer agrees that neither the Company nor any of its employees will be liable for any negligent-or innocent misrepresentations made to the Customer and all product descriptive matter are supplied as guidelines only.
4.5 It is the sole responsibility of the Customer to determine that the goods and services ordered are suitable for the purposes of intended use.
4.6 The Customer hereby confirms that the goods on the Tax invoice issued duly represent the goods ordered by the Customer at the prices agreed to by the Customer and where delivery/performance has already taken place that the goods and services were inspected and that the Customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.
4.7 The Customer warrants the information contained herein is correct, complete and accurate in every way;
4.8 The risk of damage to or destruction of goods passes to the Customer on commencement of
loading dispatch of goods.
4.9 The Customer undertakes to inform the Company in writing within 7 days of any change of Director, Member, Shareholder or Owner or 14 days prior to selling or alienating the Customer's business and failure to do so will constitute a material breach of this agreement.
5.CESSION
5.1 The Customer shall not be entitled to cede any of its rights or assign any of its rights and obligations in terms of this Agreement without the prior written consent of the Company.
5.2 The Company shall have the right to cede or assign any of its rights and obligations in terms of this Agreement to any person at its sole and absolute discretion, without obtaining the prior consent
(written or otherwise) of the Customer.
6. BREACH Should the Customer:
6.1 Fail to make payment of any amount owing in terms of this agreement and fail to remedy such breach within 7 (seven) days of receipt of notice of such breach; or
6.2 Commit a breach of any of the terms, conditions and/or warranties of this agreement or if any surety for,
or co-principal debtor with the Customer breaches any of the terms, conditions and/or warranties of any agreement between it and the Company, and fails to remedy such breach within 7 (seven) days of receipt of notice of such breach, or
6.3 Allow any judgment against the Customer to remain unsatisfied for a period of 14 (fourteen) days; or commit any act referred to as an act of Insolvency in the Insolvency Act No 24 of 1934 (as amended); or
6.4 Compromise or attempt to compromise, or defer payment of any debt owing by him/her/it to any of its Creditors; or
6.5 Be provisionally or finally sequestrated in the event of the Customer being a natural person or partnership;
6.6 Be provisionally or finally wound up, liquidated or placed under judicial management in the event of the Customer being a Company or Close Corporation;
6.7 Then upon the happening of any of the aforesaid events, the Company shall have the right without prejudice to any other rights, which may thereupon be available to it, to claim immediate payment of the outstanding amounts due in terms of this agreement. In this instance the Customer shall be liable to pay all legal costs on the Attorney & own Customer basis, collection commission and tracing agent charges.
6.8 No claim under this contract will arise unless the Customer has, within 7 days of the alleged breach or defect occurring, given the Company 30 days written notice by prepaid registered post to rectify any defect or breach of contract.
7. DOMICILIUM CITANDI ET EXECUTANDI.
7.1 The parties choose as their domicilia citandi et executandi for all purposes under this agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the following addresses:
Blue Lemon Trading (Pty) Ltd; 85 Studio Office Park, 5 Concourse Crescent Lonehill 2055
The given address as furnished by the Customer on the Customer Details contained in this Agreement shall be the Customer's chosen domicilium citandi et executandi.
7.2 Each of the parties shall be entitled from time to time by written notice to the other to change its domicilium to any other address within the Republic of South Africa which is not a post box or poste restante.
7.3 Any notice given and any payment made by either party to the other (“the addressee”) which:
7.3.1 is delivered by and during the normal business hours of the addressee at the addressee’s domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee at the date of delivery,
7.3.2 is posted by prepaid registered post to an address within the Republic of South Africa to the addressee at the addressee’s domicilium for the time being, shall have been received by the addressee on the 7 (seventh) day after the date of posting.
7.4 Where in terms of this agreement any communication is required to be in writing, the term “written” shall include communications by telegram and/or facsimile. Communication by telegram and/or facsimile shall, unless the contrary is proved by the addressee, be deemed to have been received by the addresses
48 (forty eight) hours after the time of transmission.
7.5 Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a party shall be adequate written notice or communication to it notwithstanding that it was not sent to or delivered to its chosen domicilium citandi et executandi.
8. MAGISTRATES’ COURT JURISDICTION
8.1 For the purpose of all or any proceedings hereunder the parties consent to the jurisdiction of the magistrates’ court having territorial jurisdiction, notwithstanding that such proceedings are otherwise beyond its jurisdiction. This clause shall be deemed to constitute the required written consent conferring jurisdiction upon the said court pursuant to section 45 of the Magistrates’ Court Act 1944, provided, nevertheless, that any party shall have the right at its sole option and discretion to institute proceedings in any other competent court.
9. CERTIFICATE OF AMOUNT OWING
9.1 The amount of the Customer’s indebtedness to the Company in terms of this Agreement at anytime shall be determined and proved by a certificate signed by any one of the Companies authorised representatives, whose appointment, qualification and authority need not be proved.
9.2 A Certificate issued pursuant to 9.1 shall be;
9.2.1 binding on the Customer as prima facie proof of the amount of the Customer’s indebtedness in terms of this Agreement;
9.2.2 valid as a liquid document against the Customer in any competent Court for the purpose of obtaining Provisional Sentence and/or Judgment against the Customer there on.
10. SECURITY FOR COSTS
The Customer irrevocably waives and abandons any right that it may have, to call upon the Company, in any litigation or other proceedings, to furnish security for costs, whether such right is embodied in the Companies Act No. 61 of 1973 (as amended), or the Magistrates’ Court Act No. 32 of 1944 (as amended), or the Supreme Court Act No. 59 of 1959 (as amended) or Rules promulgated pursuant to or in connection with any of the aforesaid Act.
11. GENERAL
11.1 This Agreement constitutes the whole Agreement between the Customer and the Company and no addition to or variation, agreed cancellation or novation of this Agreement and no waiver of any rights arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by the Customer and the Company.
11.2 The Customer expressly waives all rights to claim prescription under the relevant provisions of the Prescription Act 68 of 1969 as amended.
11.3 Under no circumstances will the Company be liable for any damage arising from any misuse or
abuse of the goods.
11.4 Any printout of computer evidence tendered by any party shall be admissible evidence and no party/ shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence.
11.5 If the Customer fails to comply with any of his obligations in terms of this agreement the Company has the right to effect such compliance on the Customer’s behalf, and all costs and expenses incurred by the Company in so doing or otherwise in protecting his title to the goods are payable by the Customer to the Company on demand.
11.5 Any provision in this Agreement, which is found to be inoperative, shall be severable from the remaining provisions, which remaining provisions shall be deemed to be the agreement between the
Customer and the Company.
11.6 When any number of days is prescribed in this agreement, same shall be reckoned exclusively
of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
12. CANCELATION
12.1.This order will be considered binding once we have received either a signed quote, a company purchase order or 50% payment.
12.2 Should you cancel after a signed quote, purchase order of 50% payment is received, then it shall incur a cancellation fee of 15%. All parties hereby agree this fee is not deemed an excessive penalty and is
just and equitable.
12.4 Production will only commence once we have received 50% payment. This is non returnable.
Suretyship Terms and Conditions
The surety/ies does/do hereby bind himself/herself/ themselves jointly and severally as surety/ sureties and co-principal debtor(s) in solidum for the due fulfilment by the Customer, described in the Agreement (“the customer”), of all obligations to the Company arising under and/or out and/or in connection with this Agreement concluded between the Customer and the Company, both current and future (“the Agreement”). Unless the context indicates otherwise, any reference to the Company in this Agreement shall be deemed to include anyone who takes transfer of the Companies right title and interest in and to this suretyship . The surety/ies renounce/s the benefits of excussion, division and cession of action, the nature and extent of which the surety/ies acknowledge himself/ herself/ themselves to be aware. No extension of time or indulgence that may be granted to the Customer at any time nor any release of any other security or suretyship shall in any way affect the surety’s/ sureties’ liability hereunder. The surety/ies consent to the jurisdiction of the Magistrate’s Court provided the Company shall be entitled to institute action in any other court. The surety/ies agree to make payment of any legal costs that may be awarded against him/ her/ them on an attorney and own Customer scale. The surety/ies choose as his/her/their domicilium citandi et executandi for all purposes arising out of this suretyship, the address/es set out overleaf, next to his/her/their respective signatures. The surety/ies indemnifies/y and hold the Company and its cessionary/ies in the event of a cession harmless against any claim arising out of or incidental to the Agreement to it’s breach or it’s termination for any reason whatsoever. The surety/ies warrant and represent that he/she/they have received and will continue to receive adequate value for the granting of this suretyship. The surety/ies agree that where it is contemplated that more than one person will sign as surety, any surety/ies who may have signed as surety/ies shall be bound in solidum, irrespective of whether or not the other/s referred to will have executed this document or become bound in terms thereof. The surety/ies agree that no termination, cancellation, limitation or variation of is/her/their obligations in terms of this suretyship shall be of any force or effect unless it is agreed to in writing and signed by the Company or it’s cessionary/ies, in the event of a cession in terms of this agreement.
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