1. Orders placed with the Seller are binding upon the Purchaser unless the Purchaser is notified to the contrary by the Seller.
2. All prices quoted do not include transport. Goods are sold ex Seller's premises and are despatched at the risk of the Purchaser. The Seller's responsibility shall cease when the goods are despatched. Risk in the goods shall pass to the Purchaser immediately the goods are despatched. Risk of loss or damage to the goods during delivery is with the Purchaser.
3. The Seller shall not be responsible for the non-delivery of the goods or for delays in delivery occasioned by Acts of God, force majeure, strikes, lock-outs, war, riots, civil commotion, transport delays, power failures, mechanical breakdown, restrictions or prohibitions imposed by Government, shortage of raw material, delays in delivery of goods to Seller's premises, and without in any way being limited by the a foregoing, by any other cause beyond the Seller's control.
4. Payment for the goods invoiced in terms of an order must be made when the relevant invoice becomes due for payment. The Purchaser shall not be entitled to deduct any amount from the invoices without the written authority of the Seller. Deal prices subject to review if invoice not paid within terms.
5. The Seller shall endeavour to despatch the goods on or before the date stipulated in this order but the order shall not be invalidated by reason of late delivery provided that the goods are despatched within a reasonable period. Time is not the essence of this contract. Part deliveries by the Seller are permissible. The Seller shall not be liable for any losses, costs, damages, charges or expenses caused by any delay in the delivery of goods.
6. These Conditions of Sale do not constitute a waiver by the Seller of any of its rights under Common Law. Until such time as the Purchaser has paid the purchase price in full in respect of any purchase of goods, ownership in and to all such goods shall remain vested in the Seller. The Seller shall, in its sole discretion, be entitled to take possession of any such goods which have not been paid for and in respect of which event the Purchaser shall be entitled to a credit in respect of the goods so returned being the price at which the goods were invoiced or the value thereof as determined by a sworn valuator of the Seller's choice at the Seller's discretion.
Reservation of Ownership:
7. The risk in and to the goods sold hereunder shall pass to the Purchaser on despatch thereof notwithstanding the reservation of ownership therein.
8. In the event of the Purchaser failing to make payment of any amount due by it to the Seller in terms hereof or in terms of any arrangement between it and the Seller, timeously and on due date, then and in such event the full amount owed by the Purchaser to the Seller shall forthwith become due and payable, notwithstanding that the due date of the payment thereof shall not yet have arrived.
9. The Seller shall be entitled in its sole and absolute discretion and without ascribing any reason therefore:
9.1 To either delay or refuse delivery of the goods sold in terms hereof until satisfactory guarantees for payment in respect thereof have been provided to the Seller; and/or,
9.2 To terminate any order without being liable to the Purchaser whatsoever by reason thereof.
10. Products are supplied on condition that none of the goods are passed or re-sold to any third party for resale without prior written consent of the Seller.
11. In the event of an order being given to the Seller on the Purchaser's official order form, the Purchaser shall be stopped from denying the validity of such order, notwithstanding the fact that such order may have been given or signed by a person not authorized by the Purchaser.
12. It is agreed that set-off shall operate automatically in favour of the Seller as a matter of Law at the moment when reciprocal debts between the Seller and the Purchaser come into existence and independently of the will of the parties and it shall not be necessary for the Seller to specifically raise set-off.
13. The Purchaser shall advise the Seller of all the premises in which he intends selling the merchandise.
14. If payment of the purchase price of any goods sold to the Purchaser becomes overdue in whole or in part, then, without prejudice to any of its other rights, the Seller (or its Agent) shall be entitled, without notice, to cancel the sale and recover possession of or re-sell its goods and shall be entitled to enter upon the Purchaser's premises for the purposes of such re-sale or for the purpose of inspecting the contents of such premises or for the purpose of re-taking possession of its goods (where such re-taking is by Law allowed).
15. If third parties try to assert or substantiate rights to any goods in which the Seller still has proprietary rights, the Purchaser shall be obliged to inform the Seller of any such action immediately, and the Seller shall be entitled to take whatever action it may see fit to protect its rights including cancellation of the sale and repossession or re-sale of the goods. In the event of any such cancellation of the agreement the Purchaser undertakes to hand over and return the goods to the Seller.
16. The Purchaser and Surety hereby choose as domiciliumcitandi et executandi for the purposes of any legal process including but not limited to any notice in terms of the National Credit Act 34 of 2005 or any subsequent legislation the address reflected herein as the delivery address.
17. The Purchaser and the Surety renounce the benefits of excussion and division contained herein with the full meaning and effect of all of which the Purchaser and the Surety declares himself/themselves fully acquainted.
18. The Purchaser will be liable to pay interest and/or admin costs to the Seller at the maximum rate applicable in law on all overdue amounts. A certificate issued by the Seller and signed by a Director or Manager, whose appointment and/or authority need not be proven, shall be prima facie proof of the outstanding amount and shall suffice for purposes of summary judgment and default judgment.
19. Should the Purchaser fail to object to any item appearing on the Seller's statement of account within fourteen days (14) of the date of dispatch of the statement, the account shall be deemed to be in order and the Purchaser shall be deemed to have received delivery of each and every item appearing on such statement in good order and condition.
20. In the event of action being instituted against the Purchaser by the Seller, the Purchaser agrees to pay costs on the attorney and own client scale, including collection commission payable, in terms of Law.
21. The Purchaser agrees to notify the Seller in writing within seven (7) days of any change in ownership of the Purchaser's business or, should the Purchaser be a company, any share transaction where the majority shareholding is affected.
22. Should the Purchaser be in default in any respect whatsoever, the Seller shall be entitled in its sole discretion to institute action against the Purchaser in any competent court of law and the Purchaser consents to the jurisdiction of the Magistrates' Court in terms of section 45 of Act 32 of 1944, as amended. This notwithstanding, should the Seller elect to institute proceedings in the High Court, the Purchaser hereby submits to the jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg in respect of any action instituted against the Purchaser by the Seller.
23. Save as expressly set out herein and unless prohibited by statute, the Seller shall not be liable to the Purchaser for any loss or damage sustained by the Purchaser, including without limitation, indirect or consequential loss, loss of profit, revenue, anticipated savings, business transactions or goodwill, or any other loss or damage of whatever nature or howsoever caused (and whether the loss was actually foreseen or reasonably foreseeable), arising from the sale of goods to the Purchaser, the delivery, non-delivery, incorrect or late delivery, or the use of or possession of the products or services of the Seller, or as a result of or in connection with the Seller's negligent (including grossly negligent) acts or omissions or those of their employees, agents or other persons for whom in law they may be liable, including but not limited to any liability that may arise pursuant to the provisions of the Consumer Protection Act, 2008.
24. The signatory on behalf of the Purchaser hereby personally binds himself as Surety and co-principal debtor in solidium with the Purchaser for the due payment of all amounts and performance of all obligations owing by the Purchaser to the Seller under renunciation of the benefits of excussion and division, with the full meaning and effect of which he declares himself to be fully acquainted.
25. The Seller shall be entitled to update and amend these terms and conditions from time to time unilaterally and without the Purchaser and Surety's agreement. The amended version of the terms and conditions shall be displayed on the Seller's website. It shall be the Purchaser's responsibility to check the Seller's website for any amended terms and conditions. The Purchaser and Surety agree that the Seller's amendments to these terms and conditions shall be valid and binding on the Purchaser and Surety, and the Purchaser and Surety shall not be entitled to dispute the validity of any amendments.
26. These terms and conditions are the entire agreement between the parties. Except in the case of amendments made by the Seller pursuant to clause 25 above, no variation thereof or addition thereto will be of any force or effect unless reduced to writing and signed by the Seller and the Purchaser and the Surety (where applicable).
27. The terms/clauses of this agreement are severable and should any term/clause be found to be unenforceable for any reason whatsoever, such offending term/clause shall be severed from this agreement and shall not affect the remainder thereof.
28. The Purchaser and Surety (where applicable) hereby give consent to the Seller to obtain any and all information to assess this credit application. In this regard the Purchaser and Surety hereby consent that the Seller may obtain any relevant information from their trade references or from any credit bureau and further consents to the Seller disclosing any relevant information relating to their payments in terms of this agreement to any third party requesting same in writing.
29. The Purchaser and Surety (where applicable) acknowledge that the credit limit granted in terms of this agreement and continued credit worthiness of the Purchaser and Surety (where applicable) may be reviewed and adjusted by the Seller from time to time as business conditions dictate. The Purchaser and Surety (where applicable) undertake to promptly furnish the Seller with whatever information may be requested in order to reassess the credit limit granted in terms of this agreement or to reassess the credit worthiness of the Purchaser and Surety (where applicable).
30. The Purchaser and Surety (where applicable) undertake to immediately notify the Seller in writing should he/she/they not wish the Seller to automatically increase the credit limit granted in terms of this agreement if it is found that cause for such increase exists.
31. The Purchaser and Surety (where applicable) acknowledge that insofar as provided for by the National Credit Act, 2005 he/she/they is/are entitled to refer this agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction with a view to resolve any dispute under the agreement or develop and agree on a plan to bring arrear payments up to date.
32. The Purchaser and Surety (where applicable) acknowledge that the information furnished in the completion of this agreement will be utilized by the Seller in assessing the credit worthiness of the Purchaser and Surety (where applicable) and confirm that the information furnished is correct at the time of signature thereof and undertake to immediately notify the Seller in writing should any change in the financial circumstances of the Purchaser or Surety (where applicable) occur.
33. 'Futures' Forward • Ordering: Terms and Conditions
33.1 Definition: Futures orders are orders placed by the Purchaser for delivery of product on a specified future date.
33.2 Prices: Prices and units of products on Futures orders are confirmed as quoted. In the event that the cost of product ordered increases between the date of order and date of shipment, the Seller reserves the right to increase prices accordingly, subject to confirmation of the order by the Purchaser. Confirmation of a Futures order will be provided by the Seller prior to the order delivery date, which shall confirm the pricing of the Futures order. Should the Purchaser cancel or postpone delivery of a Futures order, other than in terms hereof, prices offered on Futures will not be available.
33.3 Orders: The Purchaser is entitled to amend or cancel Futures orders within
30 days of placing the Futures order.
Save as expressly stated in these Terms, the Purchaser shall not be entitled to amend or cancel a Futures order.
Customized orders may not be amended or cancelled.
33.4 Changes and cancellations: The Purchaser may reflow Futures orders
Within the same season to enjoy the same in-season price, provided orders are not cancelled.
Should the Purchaser cancel or postpone delivery outside of the season, the Futures orders and/or subsequent orders will be invoiced at the higher in-season price of the following season.
33.5 Payment: Payment must be made when the relevant invoice becomes due for payment, subject to Seller's standard payment terms.
34. This credit application is intended to create separate, distinct and independent credit applications, contracts of sale and Suretyships by the Purchaser in favour of SIMA Agency and Distributers (Pty) Ltd. When the word "Seller" is used in these terms and conditions, it shall be a reference to SIMA Agency and Distributers (Pty) Ltd, as the case may be.
35. The Suretyship and reservation of ownership contained in this document are in favour of SIMA Agency and Distributers (Pty) Ltd and this document must be interpreted accordingly.
36. Delivery: The Supplier will attempt to meet the Customers delivery time but a failure to do so will not give the Customer any claim against the Supplier. Delivery Notes signed by the Customer or the Customer’s employee shall be proof of delivery of all goods in good condition. Customer’s claims for incorrect delivery must comply with the following: The Delivery Note is so endorsed with the details; Written notice is given to the Supplier within 48 (Forty Eight) hours of delivery. All Claims must be made within 4 days of receipt of goods. No merchandise may be returned without prior written authorization.