1. INTRODUCTION
These terms and conditions constitute the entire agreement between Constantia Printing Inks cc (“CPI”) and the customer (“the Customer”) whose name appears on the application for credit facilities form as furnished to CPI and/or on the invoice or delivery note for the sale of goods and/or materials, and replace all prior arrangements / undertakings. CPI reserves the right to amend these conditions at any time, without prior notification. In the event that these conditions of sale conflict with any terms shown on the Customers purchase / order form, the former shall prevail.
2. PRICES, DELIVERY & PAYMENT
2.1. All prices quoted are exclusive of value-added tax, transport, packaging and insurance costs and are not subject to any discounts unless agreed to in writing. Due to fluctuations in exchange rates of imported goods, prices quoted will be confirmed on receipt of order.
2.2. CPI is entitled to choose the type and method of delivery and is further entitled to engage the services of a third party (for example, a transport company), to transport and deliver all goods and/or materials purchased, to the Customer.
2.3. Discount shall only be granted if:
2.3.1 CPI agrees thereto in writing; and
2.3.2 the Customer concerned makes payment of its outstanding accounts by
the agreed due date and as stipulated in clause 2.4 hereof.
2.4 The terms of payment are cash on delivery or, if the Customer has a credit facility with CPI, within 30 (thirty) days of the date of statement, payable on the first working day after month end.
3. INTEREST
Interest will be levied against all overdue accounts at 2 (two) percentum above the prime interest rate charged by ABSA Bank from time to time. Such interest shall be calculated monthly in advance, on the first day of each succeeding month, on the outstanding balance due by the Customer to CPI and for the period during which such balance remains due, owing and payable. For purposes of this agreement, an account is deemed to be overdue if not settled within the agreed 30(THIRTY) day period.
4. RESERVATION OF OWNERSHIP
All goods and materials supplied by CPI to the Customer shall remain the property of CPI until such time as the purchase price, value added tax, transport and insurance costs as well as all other charges in respect there of have been paid in full by the Customer. Where the premises at which the goods delivered by CPI are rented by the Customer, the Customer shall inform the landlord in writing of CPI’s ownership of the goods, and furnish CPI with proof thereof.
5. SET OFF
The purchase price of the goods sold and/or materials supplied shall be paid by the Customer to CPI free of deduction or set off.
6. DELIVERY, PASSING OF RISK & OWNERSHIP
6.1 All risk in and to the goods sold and/or materials supplied shall pass to the Customer on delivery which shall be deemed to have taken place: –
6.1.1 when the Customer or its agent collects them from CPI;
6.1.2 in the event of the Customer requiring delivery thereof, and CPI dispatches them to the Customer via a third party (for example, a courier service) in accordance with clause 2.2 hereof, on the date upon which they are handed to such third party for delivery to the Customer;
6.1.3 in the event of CPI itself delivering the goods and/or materials, at the date when the goods and/or materials are off loaded at the delivery address as nominated by the Customer.
6.2 In the event of the Customer requiring the delivery of any order in terms of clauses 6.1.2 or 6.1.3 hereof, CPI does not warrant, nor will it be held responsible for any delay(s) in delivery. As such, any such delay, arising from any cause whatsoever, will not entitle the Customer:
6.3
6.2.1 to cancel the order concerned; and/or
6.2.2 to claim any damages from CPI.
6.3 The Customer shall not be entitled to return any goods and/or materials to CPI without first obtaining:
6.3.1 its prior written consent; and
6.3.2 a return authorisation number together with return delivery instructions from CPI.
6.4 The transport costs of such a return are for the account of the Customer.
6.5 The Customer undertakes, upon receipt of the order, to immediately check such order and to notify CPI in writing within 7 (SEVEN) days of any defect, shortfall or discrepancy in respect thereof.
6.6 In the event of the Customer having timeously notified CPI of any event recorded in clause 6.5 above, CPI shall, in its sole and absolute discretion, either:
6.6.1 take back and exchange any defective goods; or
6.6.2 take back such goods and/or materials and credit the Customer with the full purchase price therefore; or
6.6.3 make good and rectify any stock shortfall or discrepancy;
7. GUARANTEES, WARRANTIES & INDEMNITY
7.1 All goods are sold voetstoets and all guarantees or representations which may be implied to the Customer in law as manufacturer or dealer are expressly excluded. In particular the Customer is solely responsible for determining whether the goods are suitable for their contemplated use. CPI does not accept any responsibility for any damages whatsoever (including lost profits, consequential damages, special damages, etc) arising from the use of the goods by the Customer or any third party, or from any alleged defects in the goods, since the application of the product is beyond the control of CPI.
7.2 CPI shall not be bound by or be liable for any representations or warranties made by any employee or agent unless reduced to writing and reduced to writing and signed by a member of CPI.
7.3 All goods are sold and supplied to and accepted by the Customer voetstoets, without any warranty expressed or implied against latent or patent defects and on the particular understanding that CPI does not warrant nor represent that such goods or any portion thereof are suitable for the purpose of which they are bought or any other particular purpose.
8. DEFAULT
8.1 The Customer will be deemed to be in default of its obligations if it defaults in paying its account on due date or commits a breach of any of the terms and conditions hereof or; in the case of an individual, dies or is provisionally or finally sequestrated, surrender or make application to surrender his estate or commits any act of insolvency; or in the case of a partnership, if the partnership is terminated; or, in the case of a company or close corporation, if it is placed under a provisional or final order for liquidation or judicial management, or has a judgment recorded against it which remains unsatisfied for 7 (SEVEN) days, or compromises or attempts to compromise generally with any of its creditors, or enters into any transaction which has the effect of changing the beneficial ownership of its business, or if it enters into any transaction which has the effect of a change in the effective control of such company or corporation; then, irrevocably and without prejudice to any other rights, CPI:
8.1.1 may be entitled, to demand immediate payment of the outstanding amount; and/or
8.1.2 may enter the Customer’s premises in order to recover possession of the goods and/or material without being obliged to obtain a Court Order for such repossession; and/or
8.1.3 retain any prepayment or payment made on account as a penalty or liquidated damages; and/or
8.1.4 shall, furthermore, be entitled to cancel this agreement and suspend the carrying out of any obligations to the Customer which may be unfulfilled. In such event, the Customer shall have no claim or claims of whatsoever nature against CPI.
8.2 The content of clause 7 above shall in no way limit any other remedies which CPI may have in law against the Customer.
8.3 The Customer agrees that CPI shall be entitled, but not obliged, to institute any proceedings which may arise out of its contract with the Customer for the recovery of the full balance which may be due to CPI in any Magistrate’s Court having jurisdiction over the Customer from time to time, notwithstanding that the claim may exceed the jurisdiction of the Magistrate’s Court. Further, the Customer agrees to be liable for all legal costs including costs on the scale as between attorney and his own client as well as collection charges and tracing costs (if any).
8.4 A certificate by any member or manager of CPI showing the amount due and owing by the Customer to CPI at any given time shall be prima facie evidence of the amount due. Such certificate shall be sufficient for purposes of obtaining judgement, provisional sentence or for other legal proceedings as the case may be.
9. DOMICILIUM
The Customer nominates its delivery address as reflected on the face of the latest delivery note as being its address for service for service upon it of all notices and processes in connection with any claim(s) or any sum(s) due to CPI.
10. GENERAL
10.1 The Customer undertakes to inform CPI, in writing within 7 (SEVEN) days of any change in director, member, shareholder, ownership in it or of address. Failure to do so will constitute a material breach of this agreement.
10.2 The Customer expressly waives any rights it may have in terms of the Prescription Act,1969.
10.3 The invalidity of any part of the terms and conditions will not affect the validity of any other part, each clause in this agreement being severable from the rest.
10.4 Any order is subject to cancellation by CPI due to vis maior (act of God) from any cause beyond the control of CPI, including but not limited to 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 as well as fire, flood, drought or legislation.