The person, firm or company applying for a credit facility is hereinafter termed “The PURCHASER” and The Face & Body Institute (Pty) Ltd “The SELLER”.
2. Legal Construction:
(i) No terms or conditions appearing in any of the PURCHASER’s documents, including the PURCHASER’s buying order, which are at variance with these terms and conditions shall be binding upon the SELLER.
(ii) No alteration or variation of these terms and conditions shall apply either at the time the contract is concluded or at any time afterwards unless the alterations or variation in question is expressly agreed to in writing and signed by an authorised representative of the SELLER.
(i) Delivery predictions shall be calculated from the date of receipt at the SELLER’s premises or associated premises, of full order details and are only an approximate indication of the expected delivery unless otherwise stated. Late delivery shall not invalidate the contract nor render the SELLER liable for any damages whatsoever.
(ii) The tendering of the goods at the delivery point or agreed on or in the case of POD orders, the tendering of clean negotiable documents covering the shipments shall be deemed to be delivery of the goods. Risk in end to the goods shall pass to the PURCHASER on delivery as defined above.
(iii) The off-loading of the goods at the delivery point is the responsibility of the PURCHASER and shall be performed at its cost.
(i) Risk in and to the goods when transported by the SELLER shall pass to the Purchaser on delivery.
(ii) Where the SELLER does not itself transport the goods the SELLER accepts no liability for goods damaged or lost in transit and the PURCHASER is responsible for lodging a claim with the carrier immediately. The PURCHASER accepts that all the goods inspected before despatch and shall be deemed to have been received by the carrier in good condition unless the PURCHASER proved the contrary.
(iii) If the goods are damaged or the packaging in which they are transported is wet at the time of delivery the Purchaser shall advise the Seller’s sales office within twenty four (24) hours of the goods being delivered.
(iv) The Purchaser shall have no claim for short delivery unless:
(i) Such claim is lodged in writing at the Seller’s sales office within (24) hours date of delivery, and
(ii) The goods in respect of which the claim is made are preserved intact as delivered for a period of seven (7) days thereafter, and
(iii) The Seller is permitted to check the quantity of goods delivered; and
(iv) The nature of the claim is clearly specified in writing and such writing is accompanied by a copy of the relevant packing list.
Any breach of the foregoing conditions shall disentitle the Purchaser to any allowance of claim for alleged short delivery.
(v) If the purchaser is found to have a valid claim for short delivery the contact between the parties shall not be invalidated thereby and the only right that the Purchaser shall have is a right to a replacement product of same type, of same size, same quantity and same value.
(vi) The purchaser shall have no claim of whatever nature in respect of goods which are damaged unless such claim is lodged in writing with the Seller within twenty-four (24) hours of the date of delivery, this sub-clause shall not apply to goods which are patently defective at the time of delivery.
(a) Where goods are patently defective or damaged the Seller shall not be liable to the Purchaser in any way at all unless:
(i) Where goods are patently defective the Seller shall not be liable to the Purchaser in any way at all unless: The Purchaser lodges a claim in writing at the Seller’s sales office within seven (7) days of date of delivery and
(ii) The goods in respect of which the claim is made are preserved intact and returned to the sellers office, and
(iii) The nature of the claim is clearly specified in the writing and such writing accompanied by a copy of the relevant packing list.
(b) The Seller reserves the right to reject any claim made within the abovementioned period in the event of it being satisfied that the defects or damage arose by fault on the part of the Purchaser.
(c) Any breach of the foregoing conditions shall disentitle the Purchaser to any claim in respect of the goods which are patently defective or damaged.
The Seller shall be exempt from and shall not be liable under any circumstances whatsoever for:
(a) Any indirect or consequential damages of any nature or any loss of profit which the Purchaser may suffer because of any breach by the Seller of any of its obligations or arising out of the use of the goods.
(b) Any negligence on the part of the Seller or that of its servants or agents, in carrying out any of their obligations.
(ix) The Seller’s liability in respect of any claim based upon defective goods is limited to replacing such goods as against the return to it of the defective goods.
5 Non-performance or delay:
The Seller reserves the right to cancel any contract with the Purchaser should its fulfilment be delayed or rendered more onerous to the Seller or rendered impossible by war, invasion, Insurrection, riot, order of any government, municipal or civil authorities, breakdown of plant equipment or machinery, accidents, labour disputes, boycotts, economic sanctions, or by any other cause beyond the responsible control of the Seller and/or the Seller’s suppliers. The Purchaser agreed that the Seller shall have no responsibility or liability under or arising out of the contract in the event if notice of cancellation being given by the Seller under the clause.
(i) The SELLER may cancel any contract or any uncompleted part of it, if the PURCHASER:
(a) The seller may cancel any contract or any uncompleted part of it, if the Purchaser: Commits any breach of the terms or conditions of the contract or of any other contract between the Seller and the Purchaser.
(b) Being an individual died or is provisionally or finally sequestrated or surrenders his Estate, or
(c) Being a partnership, the partnership is terminated; or
(d) Being a company, is placed under provisional or final order of liquidation or judicial management; or
(e) Any judgement is granted against the Purchaser.
(ii) No relaxation which the Seller may have permitted on any one occasion with regard to the carrying out of the Purchaser’s obligations shall prejudice or be regarded as a waiver of the Seller’s rights to strictly enforce those obligations on any subsequent occasion.
(iii) If any amount owed to the Seller by the Purchaser in respect of any claim is not paid on due date, then all amounts owed to the Seller by the Purchaser shall become due and payable and any discount which the Purchaser may have been entitled to claim shall be forfeited.
(iv) The Purchaser shall be obliged to pay interest to the Seller on all amounts which are overdue at a rate as determined by the Seller from time to time.
(v) Upon the termination of the contract, for any reason whatsoever, the Seller may retake possession of the Seller’s goods in respect of which ownership has not passed to the Purchaser.
(vi) If the Seller instructs its Attorneys with regard to any claim against the Purchaser, the Purchaser shall be obliged to pay all such Attorney’s costs as between Attorney and Client, including collection commission, which the Seller is by agreement obliged to pay to its Attorneys.
(vii) The Purchaser hereby agrees and consents that the Seller shall be entitled at the Seller’s option to institute legal proceedings which might arise out of or in connection with this contract in any magistrate’s court in the Republic of South Africa having jurisdiction in respect of the Purchaser notwithstanding that the claim or value of the matter is dispute might exceed the jurisdiction of such magistrate’s court.
(i) All materials supplied by the Seller are subject to the Seller’s or the Supplier’s standard manufacturing tolerances unless special tolerances are stated in the Purchaser’s order and have been agreed to by the Seller in writing.
(ii) Unless the Purchaser’s order states “Deliver exact quantity specified only” and this condition is accepted by the Seller in writing, a shortage or surplus charged pro rata in accordance with the Seller’s or Supplier’s standard tolerances and price will be considered due execution of the order.
When payment is made by negotiable drafts, the relative Bank charges and cost of stamps shall be for the account of the Purchaser.
9 Insurance of goods during transport:
Insurance shall be taken out by the Seller at the Seller’s expense if the Seller is responsible for delivery.
Notwithstanding the delivery of any goods to the Purchaser, ownership thereof shall not pass until the Seller has received payment of the full contract price.
(i) Payment shall be made by the Purchaser to the Seller in South African currency, without deduction or demand and free from bank exchanges.
(ii) Payment may not be withheld pending the settlement of any dispute.
(iii) In the event of the Purchaser being in default of any payment due in terms of the agreement, the Seller shall be entitled to interdict the Purchaser from using or in any other manner dealing with goods in respect of which ownership has not passed.
(i) Subject to any express warranty or guarantee given by the Seller in writing, the Purchaser agrees :
(a) That no warranty or guarantee whether express or implied against latent defects or in respect of the fitness of the goods for any purpose has been given by the Seller, whether or not that purpose is known to the Seller;
(b) That no representation has been made by the Seller or any of its employees in respect of the fitness of the goods for any particular purpose whether or not that purpose is known to the Seller and that no representation of whatsoever nature which may be made by the Seller or any of its employees shall be binding unless reduced to writing and signed by a duly authorised official of the Seller.
(c) That the advice given by the Seller or any of its employees as to the use to which the goods may be put is given without prejudice and shall not give rise to any claim of whatever nature against the Seller.
(d) That no claim of whatever nature shall lie against the Seller as a result of the goods being put to a use to which they are not suited:
(e) To indemnify the Seller, as it hereby does, against all and any claims of whatever nature which may be made against the Seller by any person arising out of the use of the goods.
(ii) The contract between the Seller and the Purchaser shall be governed by and construed in accordance with the provisions of South African Law and shall be enforceable in the Courts of the Republic of South Africa.
13 Products and Samples
(i)Subject to any prior written permission by the seller, the Purchaser agrees that under no circumstances may sample products of any kind or variation be sold to customers.