STANDARD TRADING TERMS AND CONDITIONS
The following words shall have the meaning attached to them:-
1.1 This contract shall be interpreted according to and governed in all respects by the law of the Republic of South Africa;
1.2 The clause headings in these conditions are for convenience and shall not be used in their interpretation;
1.3 unless the context clearly indicates a contrary intention, an expression which denotes-
1.3.1 any gender includes the other genders;
1.3.2 a natural person includes an artificial person and vice versa;
1.3.3 the singular includes the plural and vice versa.
2 CONDITIONS OF SALE
All business is undertaken by the customer, strictly and exclusively subject to Brick-It’s Standard Trading Terms as detailed hereunder. The customer, by accepting any quotation from Brick-It placing any order with Brick-It, acknowledges that all business thereafter (whether under that quotation or order or otherwise) shall be so subject to Brick-It’s Standard Trading Terms and Conditions.
3.1 The customer acknowledges that the completion of the order form by the customer will be the confirmation that the Applicant has contracted with Brick-It to produce the goods as described in the order form and shall constitute an acceptance of the Standard Trading Terms and Conditions of Brick-It
3.2 The prices quoted are for the goods as specified in the Order Form. Should the customer require any variation in such specification, Brick-It’s then ruling price for goods at the time of despatch from the place of manufacture of such specification shall be the price payable.
3.3 The prices quoted in respect of goods sold are based on the current ruling rates for production costs, transport and all things which go to make up the costs of producing the goods to the customer. Should such rates be increased, the price payable shall be increased accordingly.
3.4 All quotations and price lists are subject to alteration without notice.
3.5 The prices quoted are valid for a period of 7 (seven) days from date of quotation.
4 PAYMENT TERMS
4.1 All amounts due in terms of this Agreement shall be payable by the customer to Brick-It within 30 (THIRTY) days from date of statement.
4.2 Deliberately omitted
4.3 Should payment not be effected within the period stipulated in Paragraph 4.1 above, all amounts which are not yet due for payment shall forthwith become due and payable and the customer shall pay interest on the full amount outstanding at the rate of Prime plus 4% per annum from due date to date of payment.
4.4 Payment in respect of the goods or any items comprising the goods delivered to the customer by Brick-It shall be effected by the customer, free of set-off or deduction, within the time periods permitted in terms of the relevant invoice pertaining to such goods delivered.
5 LIABILITY FOR PRELIMINARY WORK AND MANUFACTURED GOODS
5.1 The customer shall be liable for payment of any preliminary work produced by Brick-It at the customer’s request, whether experimentally or otherwise at Brick-It’s tariff as reflected in the relevant quotation.
5.2 The customer acknowledges and agrees that it shall be liable to Brick-It for all goods manufactured up to the date of receipt of written notification from the customer that the Order placed by the customer be postponed or cancelled.
All goods supplied against the order shall be packed and delivered in accordance with the Brick-It customer and practise. Should the purchaser require insurance of the goods this must be included in his order, and will be arranged before despatch and such insurance shall be paid for the purchaser.
7 AVAILABILITY OF GOODS
Notwithstanding any other provision to the contrary, the obligation to deliver goods shall in all cases be subject to the availability to Brick-It of the goods ordered;
8.1 The customer shall sign Brick-It’s delivery note in respect of each delivery made unless the customer disputes that the goods delivered do not accord with the quantity, or specification reflected thereon or does not accord with the order.
8.2 Brick-It’s Delivery Note, Waybill or the Debit Note of any authorised carrier signed by the customer or an employee or agent shall be prima facie proof on its mere production that the goods delivered thereunder accorded with the quantity reflected thereon and with that ordered. The onus shall then be on the customer to prove the contrary.
8.3 Brick-It reserves the right in its sole discretion to determine the means and route of transportation in affecting any deliveries.
9 LATE DELIVERY
Time shall not be of the essence of the contract and delivery dates shall be treated as approximate only and Brick-It does not guarantee the supply of the goods on any specified date. Under no circumstances shall the customer be entitled to withdraw from or terminate the contract on account of any delay in delivery or have any claim or any nature whatsoever against Brick-It arising from late delivery.
10 CLAIMS RELATING TO GOODS SUPPLIED
10.1 Any claim in respect of alleged short supply or defective goods shall be made in writing, which shall be delivered to Brick-It within 7 (seven) days of receipt of the purchased goods, and such claim shall clearly identify the goods by reference to the order number, delivery note number and batch number, if applicable, and shall clearly set out the nature of the complaint.
Clauses 7 and 13
10.2 If a claim in proper form is not lodged within the stipulated period of 7 (seven) days, the goods shall be deemed to be free of defect and in accordance with the order placed.
Clauses 7 and 13
10.3 If a claim has been lodged in accordance with the provisions of clause 10.1 above, Brick-It shall be afforded a reasonable time to inspect the goods to ascertain whether they are in accordance with the written order.
11 In addition the customer shall be precluded from raising any compliance or disputing liability to Brick-It in any way unless it shall have notified Brick-It of its complaints or grounds of dispute in writing within 7 (seven) days of receipt of the goods in question. Notwithstanding the raising of a complaint or dispute of liability by the customer, the customer shall, under no circumstances, be entitled to withhold payment in respect of the goods ordered from by Brick-It pending the settlement of such dispute or complaint. Subject to the aforegoing, Brick-It shall, in its discretion, be entitled to either remedy any failure by adjusting, repairing or replacing the goods in question, or refunding the whole or part (as the case may be) of the contract price paid to it by the customer in respect of such goods sold.
Clauses 7 and 13
12 RETURNED GOODS
All return transportation costs in respect of goods returned by the customer shall be for the customer's own account and shall be subject to a handling charge of the greater of R1, 500,00 and an amount equal to 15% of the total purchase price shown on the seller's invoice in respect of such goods.
The goods shall be at the customer’s risk as soon as they leave Brick-It’s premises irrespective of who is responsible for the delivery of the goods; provided that if the customer fails to take delivery of the goods when tendered, then the risk therein shall pass to the customer as soon as delivery is tendered by Brick-It even if the goods have not left Brick-It‘s premises and all costs directly or indirectly, incurred by Brick-It in storing, caring for and invoicing the goods after such tender shall be paid by the customer to Brick-It’s “premises and all costs, directly or indirectly, incurred by Brick-It in storing, caring for and invoicing the goods after such tender shall be paid by the customer to Brick-It on demand.
14 NOTIFICATION OF LOCATION OF GOODS
Pending payment in respect of the goods or any items comprising the goods (hereinafter collectively referred to as “the goods”) which have been delivered, to the customer, the customer:-
14.1 shall, if the goods are not to be kept at the customer’s principal place of business as reflected in the Credit Application, forthwith notify Brick-It in writing of the address of the premises in or upon which the goods will be kept;
14.2 acknowledges that the goods are movable property and that they shall so remain notwithstanding the means used to install them in any place or premises;
14.3 shall forthwith, and in the event that the premises where the goods are to be kept or utilised be rented, notify the landlord of Brick-It‘s reservation of ownership in the goods;
14.4 shall not, without the prior written consent of Brick-It remove the goods beyond the borders of the Republic of South Africa as territorially constituted on the date of delivery of the goods.
15 RESERVATION OF OWNERSHIP
Notwithstanding anything to the contrary which may be herein contained or implied, or any credit given in respect of any particular sale and delivery, the goods shall be and remain the property of Brick-It, and ownership and dominium in the goods shall remain vested in Brick-It , until the purchase price payable in respect of each sale of goods shall have been paid.
16 EXCLUSION OF LIABILITY
16.1 Brick-It shall not be liable for any loss of damage whatever suffered by the customer or any other person as a result of:-
16.1.1 The goods or any part thereof;
16.1.2 Any delay in delivering the goods or any part thereof;
16.1.3 Any failure to deliver the goods or any part thereof.
16.2 Brick-It shall not be liable to the customer or any other person for any loss of profit or other special damages or any consequential damages whatever arising out of any breach by Brick-It of any of its obligations under these conditions or out of any other cause whatever.
16.3 The customer indemnifies Brick-It against any claim which may be made against Brick-It by any other person in respect of any matter for which the liability of Brick-It is excluded in terms of 16.1 or 16.2.
17 RESALE OF GOODS (Not Applicable)
If default is made by the customer in the full or timeous payment of the purchase price payable in respect of the goods, or if the customer should suffer any judgement against it, or being an individual, be provisionally or finally or voluntarily sequestrated, or being a company, being placed under judicial management, or liquidated, (whether provisionally or finally), then in any such event, Brick-It shall have the right:-
18.1 to either cancel the agreement in respect of the sale of any items comprising the goods not yet delivered to the customer, to retain any payments already effected by the customer by way of a genuine pre-estimate of liquidated damages suffered by Brick-It and to demand that the customer forthwith return to Brick-It, at its expense any goods (if applicable) already delivered and unpaid for or not fully paid for if the customer should fail to do so, Brick-It may apply to any competent Court for an order to obtain possession of such goods. Such cancellation and repossession shall be without prejudice to Brick-It’s rights to recover from the customer all loss or damages sustained by it arising directly or indirectly as a consequence of the customer’s breach;
18.2 to claim specific performance and immediate payment of all amounts owing to it by the customer, whether or not performance or payment is as at that date due by the customer, without prejudice to any rights Brick-It may have to recover from the customer all loss or damages sustained by it, directly or indirectly, as a consequence of the customer’s breach.
A Certificate by one of Brick-It’s Directors showing the amount due and owing by the customer to Brick-It at any given time shall be prima facie proof of the facts therein stated for the purpose of all legal proceedings against the customer for recovery of the said amount.
20 LEGAL COSTS
The customer acknowledges and agrees that it shall be liable for all legal costs incurred by Brick-It in enforcing any of the provisions of this agreement on the scale as between attorney and own client, which legal costs shall include, where appropriate, disbursements, collection commission and tracing charges and that such costs shall be payable upon demand.
The customer hereby consents to the jurisdiction of the Magistrate’s Court, notwithstanding that the subject matter or the quantum of the matter in question may otherwise exceed jurisdiction of such Court. Brick-It shall however be entitled, as its sole option, to institute action out of any division of the High Court of South Africa, having the requisite jurisdiction.
22 WARRANTIES, UNDERTAKINGS, REPRESENTATIONS OR AMENDMENTS
Written guarantee and instructions given by Brick-It to the customer in respect of each item sold. It is understood that the goods are sold to meet certain purposes and Brick-It has no control of the final application and gives no guarantees in the event of incorrect or faulty application. Where the goods supplied have not been manufactured by Brick-It, no guarantee or warranties contained in literature printed at the instance of the manufacturers, shall be binding on Brick-It.
23 ENTIRE AGREEMENT
This agreement constitutes the whole of the agreement between the parties hereto relating to the subject matter hereof, and save as otherwise provided for herein no amendment, alteration, addition, variation or consensual cancellation shall be of any force or effect unless reduced to writing and signed by the parties hereto.
The customer hereby waives any defences which it may have been entitled to in terms of the Prescription Act No 68 of 1969.
The customer agrees that, in the event of legal action being instituted by the customer, Brick-It will not be required to furnish security in terms of Rule 62 of the Magistrates’ Courts Act No 32 of 1944 (as amended) or in terms of Rule 47 of the Supreme Court Act No 59 of 1959.
26 NO CESSION
The customer shall not be entitled to cede or delegate any of its rights or obligations in terms of any agreement with Brick-It, without the prior written consent of BrickIt first having been obtained.
27 SEVERABILITY OF CLAUSES
In the event that any clause herein contained is illegal, invalid or unenforceable, such clause shall be treated "pro non scripto" and severed from the remaining clauses, without invalidating such remaining clauses.
28 CHOSEN "DOMICILIUM"
The client chooses as its domicilium citandi et executandi the principal place of business as reflected in Paragraph 4 of section A of Brick-It’s Credit Application.
29 WITHDRAWAL OF CREDIT FACILITIES
Credit facilities may be withdrawn by the credit grantor at any time without prior notice and extent and nature of such facilities shall at all times be at the creditor grantor's sole discretion.
No indulgence which BrickIt may grant to the customer shall constitute a waiver of any of the rights of BrickIt, which shall not thereby be precluded from exercising any rights against the customer which may have arisen in the past or which may arise in the future.
31 ACCURACY OF INFORMATION
The customer represents and warrants that the credit application has been completed in full and that all information given is true and correct and that the client has disclosed to BrickIt all information reasonably material and required by BrickIt in order to enable the creditor to make a valid decision regarding the customer's creditworthiness. The parties record and agree that Brick-It has been induced to enter into this contract relying on the truth of these warranties and representations, all of which are deemed to be material.
32 APPLICABLE LAW
The parties agree that the laws of the Republic of South Africa should govern all transactions concluded between them.