clause headings are for the purposes of convenience and reference only and shall not be used in the interpretation of, nor modify nor amplify any of the provisions of this Agreement;
1.2
a reference to –
1.2.1
any gender shall include the other two genders;
1.2.2
the singular shall include the plural and vice versa;
1.2.3
a natural person shall include corporate or unincorporate created entities and vice versa;
1.2.4
words and/or expressions defined in this Agreement shall bear the same meanings in any schedules and/or annexes hereto which do not contain their own defined words and/or expressions;
1.2.5
where a period consisting of a number of days is prescribed, it shall be determined by excluding the first and including the last day;
1.2.6
where the day upon or by which any act is required to be performed is a Saturday, Sunday or public holiday in the Republic of South Africa, the Parties shall be deemed to have intending such act to be performed upon or by the first day thereafter which is not a Saturday, Sunday or public holiday;
1.2.7
the following words and expressions shall bear the meanings assigned to them hereunder and cognate words and expressions shall bear corresponding meanings –
1.2.7.1
"Agreement" - the agreement constituted by these terms and conditions, read with the Quotation and Order;
1.2.7.2
“Business Day” – any day that is not a Saturday, Sunday or official public holiday in the Republic of South Africa;
1.2.7.3
“Contract Date” – the date on which the Quotation is accepted by the Customer, as contemplated in clause 5;
1.2.7.4
“Customer” – any person or entity who has accepted a Quotation, as contemplated in clause 5;
1.2.7.5
“CPA” – the Consumer Protection Act, 68 of 2008, as amended;
domestic or international law, sanctions or boycott imposed by any competent authority to which the Supplier is subject;
1.2.7.6.3
disease, epidemic or pandemic;
1.2.7.6.4
official or unofficial strike, lockout, go slow or other such labour dispute;
1.2.7.6.5
war, civil war, armed conflict or act of terrorism,
which directly causes either Party to be unable, physically or lawfully, to comply with all or a material part of its obligations under the Agreement;
1.2.8
“Goods” – the goods specified in the Quotation;
1.2.9
“Order” – any Written communication from the Customer to the Supplier, indicating the Supplier’s acceptance of a Quotation;
1.2.10
“Parties” - the Customer and the Supplier (and “Party” shall mean either one of them, as indicated by the context);
1.2.11
“Purchase Price” – the price payable for the Goods, as set out in the Quotation;
1.2.12
“Quotation” – any Written communication (whether in hard copy or electronic format) issued by the Supplier, setting out the price at which, and any other terms and conditions on which, the Supplier offers to sell and deliver any goods;
1.2.13
“Supplier” – Place Direct CC, a close corporation registered according to the laws of South Africa, with registration number 92/11759/23;
1.2.14
“Writing” means any form of communication capable of being read by a person, whether it is in electronic or hard copy format, and “Written” has a corresponding meaning.
2.
CONSUMER PROTECTION ACT
2.1
If, on the Contract Date, the Customer is –
2.1.1
a natural person; or
2.1.2
a Supplier, close corporation or trust with an annual turnover not exceeding R2 000 000 (two million Rand),
the CPA shall apply to this Agreement.
2.2
As required by the CPA, the Customer acknowledges that this Agreement contains provisions in which –
2.2.1
a risk or liability of the Supplier may be limited;
2.2.2
the Customer has assumed a risk or liability;
2.2.3
the Customer undertakes to indemnify the Contractor; or
2.2.4
the Customer is required to acknowledge certain facts,
being clauses 7.1, 7.2, 8.4, 8.5, 9.1, 9.2 and 13.6.
2.3
The Customer acknowledges that these terms have been specifically drawn to its attention, that it has had the opportunity of seeking legal advice in regard to them and that it has agreed to them willingly.
3.
APPLICATION OF TERMS AND CONDITIONS
3.1
These Terms and Conditions shall apply to every Quotation and every supply of Goods by the Supplier to the Customer and shall also apply to any supply of Goods to the Customer by third parties engaged by the Supplier.
3.2
The Supplier reserves the right to amend these Terms and Conditions as necessary, provided any such amendment shall not affect any Agreement concluded prior to that amendment.
3.3
Any reference by the Customer to its own purchasing terms, or other terms and conditions, shall not be accepted by the Supplier and shall not be incorporated by reference into these Terms and Conditions.
4.
QUOTATIONS
4.1
All prices quoted by the Supplier exclude Value Added Tax, unless the contrary is explicitly stated in the Quotation.
4.2
Any Quotation is valid and open for acceptance for a period of 15(fifteen) days from the date of the Quotation, unless the Supplier agrees otherwise in writing.
5.
ACCEPTANCE OF QUOTATIONS/PLACING OF ORDERS
5.1
The Customer may accept a Quotation by -
5.1.1
providing an Order to the Supplier;
5.1.2
where the Quotation provides for payment of a deposit, payment of the deposit; or
5.1.3
payment in full of the purchase price provided for in the Quotation.
5.2
The Customer may only accept a Quotation in accordance with the terms thereof and acceptance of the Quotation shall be deemed to constitute acceptance of these Terms and Conditions. Any purported variation by the Customer of the terms of a Quotation or of these Terms and Conditions shall not be binding on the Supplier unless agreed by the Supplier in writing.
5.3
On acceptance of a Quotation as contemplated in clause 5.1, an Agreement shall come into existence and shall be binding on the Supplier and the Customer. Subject to the provision of clause 12, any Agreement concluded in terms of this clause 5.3 may only be cancelled by mutual consent of the Supplier and the Customer.
6.
PAYMENT FOR GOODS
6.1
The Customer must pay the Purchase Price into the Supplier’s designated bank account in accordance with the Quotation, and the Supplier shall not be obliged to deliver the Goods if the Purchase Price has not been paid.
6.2
If any amount is not paid on the due date for such payment, the Supplier shall be entitled, without prejudice to any other rights it may have against the Customer, to levy interest on such overdue and/or outstanding amounts (at the highest applicable rate allowed by law). Interest shall be calculated from the due date of payment until the actual date on which payment is received.
7.
DELIVERY AND RISK
7.1
Delivery times provided by the Supplier to the Customer are of an indicative nature only. Accordingly, the Supplier shall not be liable for any failure to deliver the Goods (or any of them) on or by any date, where it has not expressly committed to do so. The Customer shall not be entitled to terminate any Agreement, nor shall the Supplier be liable to the Customer for any loss or damage arising from a delay in delivery of any Goods.
7.2
The Customer is responsible to ensure that the premises at which the Goods are to be delivered is accessible to the Supplier’s or its contractors’ vehicles and personnel for the purposes of effecting delivery, and the Supplier shall not be liable for failure to deliver any Goods timeously or at all where delivery cannot be affected because access to the premises cannot be obtained.
8.
OWNERSHIP AND RISK
8.1
Notwithstanding delivery of any Goods, the ownership of all Goods remains vested in the Supplier until the Purchase Price has been paid in full.
8.2
Subject to the provisions of clause 8.1, risk in and to the Products will vest in the Customer from the date of delivery.
8.3
Immediately upon delivery of the Goods, the Customer shall inspect them and shall provide the Supplier, within 5 (five) days of delivery, with details in Writing of any defects in or damage to the Goods.
8.4
Unless, and save as, disclosed in terms of clause 8.3, the Goods will be deemed to have been received free of any defects and fully compliant with all specifications contained in the Quotation.
8.5
If the Customer advises the Supplier of any defects in the Goods as aforesaid, the liability of the Supplier shall be limited to the replacement or repair of the Goods or any part thereof in order to eliminate any defect in workmanship or materials.
9.
INDEMNITIES
9.1
Save as expressly set out in the Agreement, the Supplier shall under no circumstances whatsoever be liable to the Customer for any indirect, incidental, special or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss was actually foreseen or reasonably foreseeable), sustained by the Customer or any other person arising from or as a result of any supply of Goods by the Supplier to the Customer, or from the delivery, non-delivery, incorrect, erroneous or late delivery, or condition of the Goods.
9.2
The Customer hereby indemnifies the Supplier and hold the Supplier harmless and fully indemnified from and against any loss or damage suffered or liability incurred, including, without limitation, in respect of any claim or demand by any third party contemplated in clause 9.1.
10.
CESSION OR ASSIGNMENT
10.1
Each Party warrants that it acts in its own name for itself as sole principal and that it is not an agent for any other person, nor will any other person acquire rights or incur obligations under this Agreement by operation of law or because of any partnership or other relationship between the Party and such other person.
10.2
The Agreement shall be binding on the Customer’s successors in title, including, without limitation, the Customer’s executor/s, heir/s, trustee/s and curator/s.
11.
FORCE MAJEURE
11.1
Should the Supplier fail to perform any of its obligations in terms of any Agreement as a result of any event of Force Majeure, then, notwithstanding anything to the contrary contained or implied in these Terms and Conditions, the Customer shall not be entitled to terminate that Agreement, nor shall it have any claim of whatsoever nature against the Supplier.
11.2
If, the Supplier has already partly performed its obligations when the event of Force Majeure occurs, or can only partly perform its obligations as a result of an event of Force Majeure, it shall be entitled to payment for the Goods already invoiced and delivered, or the Goods which can be invoiced and delivered, and the Customer shall be obliged to pay such invoices as if it were a separate contract.
12.
BREACH AND TERMINATION
If the Customer –
12.1
fails to pay any amount due and payable by it to the Supplier and fails to pay such amount within 7(seven) days of receiving a written demand for payment thereof from the Supplier.
12.2
is a natural person, and dies, becomes unable by reason of mental or physical incapacity to perform any of his obligations in terms of this Agreement or is sequestrated (whether provisionally or otherwise);
12.3
is a juristic person, and is placed in liquidation or under business rescue (whether provisionally or otherwise) or passes any resolution for its winding up;
12.4
compromises or attempts to compromise with any creditor;
12.5
commits any act of insolvency; or
12.6
fails to satisfy any judgment against it within 10 (ten) days of the granting thereof unless an appeal or application for rescission of a judgment has been noted and is effectively and successfully prosecuted to conclusion within the shortest possible time for the prosecution of such a matter,
the Supplier shall be entitled, at its election and without prejudice to any other rights that it may have, either in terms hereof or in law, to retain any deposit paid by the Customer, claim payment of the Purchase Price or any part thereof that is unpaid or cancel the Agreement and recover possession of the Goods.
13.
GENERAL
13.1
The Quotation, read with the Order and these Terms and Conditions constitutes the sole record of the Agreement between the Parties regarding the subject matter thereof.
13.2
Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded in the Agreement.
13.3
No addition to, variation or consensual cancellation of the Agreement shall be of any force or effect unless in writing and signed by or on behalf of both Parties.
13.4
These Terms and Conditions are governed by the laws of the Republic of South Africa.
13.5
If any provision of these Terms and Conditions is found to be void, illegal or unenforceable in any respect under any law it shall be severable from these Terms and Conditions, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
13.6
No indulgence granted by the Supplier in exercising its rights in terms hereof shall constitute a waiver of any such rights nor preclude any other or further exercise or strict enforcement of such right or any other rights hereunder.
