The following words shall have the following meaning unless the context clearly indicates otherwise:
1.1. Company means Candicraze (Pty) Ltd t/a Candico, a private company duly incorporated under registration number 2017/536993/07;
1.2. Goods means the goods sold by the Company from time to time;
1.3. Purchaser means the purchaser of the Goods.
2. The sale of all Goods by the Company to the Purchaser shall be subject to the terms and conditions contained herein, to the exclusion of any conditions stipulated by the Purchaser.
3. Every delivery of Goods to the Purchaser shall constitute a separate contract for which a separate invoice shall be issued by the Company.
4. The Goods are sold in accordance with the Company’s prevailing prices, which may vary from time to time. Price lists will be provided to the Purchaser upon request. Any delivery charges levied by the Company shall be for the Purchaser’s account.
5. Where the Company has granted the Purchaser a credit facility, the purchase price of the Goods shall be paid by the Purchaser by the date appearing on the Company’s invoice. Where the Purchaser is not granted a credit facility, the purchase price of the Goods shall be paid by the Purchaser to the Company on delivery.
6. Any payments shall be made to the Company by way of electronic funds transfer, without deduction or set-off, into the Company’s bank account.
7. All Goods are subject to availability and the Company makes no warranties that the Goods will be available at the date of order.
8. The Goods shall be delivered by the Company to the Purchaser at the Company’s premises, unless otherwise agreed in writing by the parties.
9. The Company shall not be bound by any delivery date specified by or to the Purchaser and any delivery date specified shall merely be an estimate.
10. The Purchaser shall not be entitled to withhold payment of any amount due to the Company by reason of late or non-delivery of any Goods by the Company.
11. The risk in the Goods shall pass to the Purchaser upon delivery to the Purchaser. Delivery of the Goods to the Purchaser shall be evidenced by the Company’s official delivery note (or the delivery note of any one of its authorised independent carriers), duly signed by an employee, carrier or agent of the Purchaser, acting in the course and scope of his employment with the Purchaser, whose authority the Company shall not be obliged to prove.
12. Prior to signature of the Company’s official delivery note, the Purchaser (or its employee, carrier or agent) shall inspect the Goods to ensure that the Goods are of a satisfactory type, quality and of the correct quantity. Signature of the Company’s official delivery note shall signify that the Purchaser is satisfied in all respects with the Goods.
13. Ownership of all Goods delivered to the Purchaser shall be reserved in favour of the Company until the purchase price thereof has been paid in full.
14. The Purchaser acknowledges that in purchasing the Goods, it does not rely on any oral or written statements, representations made by the Company, its employees, agents and/or representatives to the Purchaser and that the Company shall not assume any risk of inaccurate or unsuitable specifications or information provided, selected or designated by the Purchaser.
15. To the fullest extent permitted by law, the Company makes no representation or warranty of whatsoever nature or description, express or implied, in relation to the Goods.
16. To the fullest extent permitted by law, the Company shall, subject to clause 17, not be liable for any damages of whatsoever kind (including consequential losses), whether direct or indirect, sustained or alleged to have been sustained by the Purchaser or any third party as a result of:
16.1. any delay in delivery of the Goods; or
16.2. the unavailability of the Goods; or
16.3. any defect in the Goods; or
16.4. any other cause relating to the Goods, including causes resulting from negligence.
17. In the event of it being established that the Goods were defective at the time of delivery thereof to the Purchaser then the Company shall, in its sole discretion, either:
17.1. refund the purchase price of the Goods; or
17.2. replace the defective Goods.
18. Other than as provided for in clause 17 above, the Goods shall not be returnable.
19. To the fullest extent permitted by law and subject to clause 17 above, the Purchaser hereby indemnifies and agrees to hold the Company harmless against any claim for loss or damage of whatsoever nature (including consequential losses), whether direct or indirect, sustained or alleged to have been sustained by the Purchaser or any third party as a result of:
19.1. any delay in delivery of the Goods; or
19.2. the unavailability of the Goods; or
19.3. any defect in the Goods; or
19.4. any other cause relating to the Goods, including causes resulting from negligence.
20. The Purchaser shall not have any claim of any nature whatsoever against the Company, its members, employees, agents or contractors for any failure by the Company to carry out any of its obligations under any contract as a result of strikes, lockouts, delay in transport, default or delay by any of the Company’s suppliers or carriers, political or civil disturbances, the elements, any act of any state of government, infectious disease, pandemic or any other cause directly or indirectly beyond the Company’s reasonable control.
21. If the Purchaser shall fail to pay any amount on due date then all amounts owing but not yet due by the Purchaser shall immediately become due and payable to the Company.
22. If the Purchaser shall fail to pay any amount owing on the due date in respect of any contract, the Company shall be entitled, in its discretion, to cancel such contract and all other contracts concluded with the Purchaser by giving written notice to that effect of the Purchaser in which event the Purchaser.
23. A certificate issued under the hand of a director of the Company, whose authority it shall not be necessary to prove, shall be prima facie evidence of the amount due by the Purchaser and such certificate shall be sufficient for the purpose of obtaining summary judgment or provisional sentence.
24. In the event of the Company consulting its legal advisors in relation to any dispute with the Purchaser or instituting any legal proceedings against the Purchaser in terms of these terms and conditions, the Purchaser shall be liable for all expenses incurred by the Company, calculated on an attorney and client scale, including (without limitation) collection commission, tracing charges and the like.
25. The Purchaser consents in terms of Section 45 of the Magistrate’s Court Act 32 of 1944, as amended, or any substitution thereof, to jurisdiction of the Magistrate’s Court in respect of any legal proceedings of whatsoever nature arising from the provisions of this agreement, provided that the Company shall be entitled in its discretion to commence any such proceedings in any High Court having jurisdiction.
26. These terms and conditions shall be governed by the provisions of South African law.
27. The Purchaser chooses as its domicilium citandi et executandi at the Purchaser’s registered address.
28. If any of these terms and conditions is/are found to be null and void or unenforceable for any reason whatsoever, such terms and conditions shall be severable from the remainder of these terms and conditions which shall remain of full force and effect.
29. No relaxation which any party may give in regard to the performance of another party’s obligations in terms hereof shall prejudice either party’s rights hereunder or be regarded as a waiver of such rights or as an estoppel against the enforcement thereof.
30. The Purchaser shall be entitled to cede or assign its rights and obligations hereunder without the Company’s prior written consent.
31. No variation, alteration, amendment or cancellation of these terms and conditions, including this clause, or any agreement not to institute action shall be of any force or effect unless reduced to writing and signed by both the Company and the Purchaser.