STANDARD TERMS AND CONDITIONS

of

WYNDHAM DISTRIBUTION (PTY) LIMITED

(“the Supplier”)

 

  1. Scope and Application

 

  • These standard terms and conditions of the Supplier shall apply in respect of each and every contract for the sale or provision of by the Supplier, unless specifically otherwise agreed between the parties in writing.
  • The provisions of this document shall overrule any terms and conditions of contract of the customer, unless otherwise agreed between the parties in writing.
  • The Supplier may agree to a specific contract on special terms set out in the quotation or tender for such contract, and in the event of any inconsistency between the provisions of these terms and conditions and any such special terms, the special terms of the specific contract shall prevail.
  • In this document, headings embodied in the clauses are for convenience and shall not be used in its interpretation and, unless the context clearly indicates a contrary intention:
    • the singular shall include the plural and vice versa;
    • the reference to one gender shall be capable of being construed as a reference to any of the others; and
    • the references to a natural person shall be capable of being construed as a reference to a juristic person and vice versa.
  • Unless the context of this document clearly indicates a contrary intention, the following words or phrases shall have the meaning assigned to them:
    • “the Supplier” means Wyndham Distribution (Pty) Limited;
    • “the customer” means any party who purchases goods from the Supplier or with whom a contract is concluded;
    • “goods” shall be those goods to be supplied by the Supplier as specified in the Supplier’s quotation or in a contract;
    • “order” means a written request or instruction by the customer for the supply of the goods by or from the Supplier;
    • “quotation” means a written quotation or tender by the Supplier for the supply of the goods;
    • “contract” means any contract for the supply of goods by the Supplier;
    • “the agreed terms” means the number of days credit allowed from the date of invoice or from the date of statement, either net or subject to a settlement discount, as agreed to in writing by the Supplier;
    • “delivery” unless inconsistent with or otherwise indicated by the contents of the quotation or the contract, shall be regarded as taking place when delivery of the goods is effected to the customer’s address;
    • “these terms and conditions” mean the terms and conditions set out in this document;
    • “the OHSA” means the Occupational Health and Safety Act, No. 85 of 1993, as amended;
    • “the CPA” means the Consumer Protection Act, 68 of 2008, as amended;
    • “the NCA” means the National Credit Act, 34 of 2005, as amended;
    • “business day” means any day of the week excluding Saturday, Sundays and public holidays.

 

  1. Quotations

 

  • Where the Supplier delivers a quotation, no contract between the parties shall exist until acceptance of the quotation by the customer is received in writing by the Supplier, together with the official order number of the customer.
  • If the customer purports to accept any quotation subject to any qualification or to any terms other than those contained in this document and in the quotation, no contract shall come into existence and the Supplier shall not be bound until it expressly binds itself in writing to those terms.
  • A quotation provided by the Supplier to a customer shall remain valid, and unless withdrawn prior to acceptance, shall be capable of acceptance within the period stated therein, or where no period is stated, for a period of thirty (30) days as calculated from the date of the quotation.
  • The acceptance of any quotation must be accompanied by sufficient information in writing to enable the Supplier to proceed with the execution of the order forthwith, failing which the Supplier shall be entitled to amend the quoted price to cover any increases in cost incurred as a result of such delay.
  • Unless otherwise stated, quotation and budget prices are estimates only and shall not bind the Supplier.

 

  1. Limit of Contract

 

The Supplier shall only be obliged to supply the goods as are specifically quoted for and accepted by the customer.

 

  1. Packaging

 

Unless otherwise specified, all prices contained in a quotation shall include packaging in accordance with the standard practice of the Supplier.

 

  1. Contract Completion, Delivery and Claims in Respect of Goods Delivered

 

  • Delivery of anything to be delivered in terms of a quotation or the contract shall take place upon physical delivery thereof to the addresses referred to in clause 5.2 below, or a mutually agreed storage facility, and the date of such delivery shall be the delivery date for purposes of this contract. In the event that the Supplier is ready to deliver the goods and the customer is not ready to accept delivery at the addresses referred to in clause 5.2 below, or, where such delivered goods would be stored is not ready to accept delivery thereof, then the Supplier shall store such goods on behalf of the customer in its own storage facilities and shall be entitled to claim from the customer its then prevailing storage charges therefore.
  • The addresses at which the goods shall be supplied shall be those addresses specified on the customer’s order form.
  • Delivery shall not include off-loading, unless otherwise agreed, and the customer shall arrange and pay all costs of hiring any special hoists and other lifting equipment, if necessary.
  • The customer shall ensure that the Supplier is given free and unfettered access to the addresses referred to in clause 5.2 above. In the event of the customer not being able to provide such access or in the event of the customer requesting a suspension or delay in performance by the Supplier, the Supplier shall be entitled to claim from the customer any additional costs incurred by the Supplier by virtue of such suspension or delay.
  • Where applicable, the customer shall prepare any address referred to in clause 5.2 above or where necessary shall procure that such address be prepared, in accordance with the Supplier’s recommended specifications as contained in the quotation and that all necessary electrical and other installations and fittings are available in accordance with those specifications.
  • The Supplier shall endeavour to complete delivery in the time period specified in the quotation or the contract but shall not incur any liability of any nature whatsoever to the customer in the event of it failing to do so, unless specifically otherwise agreed in writing, the customer’s sole remedy in such an event being to cancel such order or unexecuted portion thereof on ten (10) days written notice to the Supplier.
  • Unless specifically otherwise agreed between the Supplier and the customer, where delivery of any works in accordance with a contract is due and the Supplier tenders such delivery and the customer refuses to take delivery or is not ready to accept such delivery, delivery shall be deemed to have taken place and the Supplier shall have the right, without detracting from any other legal remedies it may have in law, to act as if delivery had taken place and to issue an invoice for payment, which payment shall then become due in accordance with the agreed terms.
  • It is the duty of the customer to inspect the goods on receipt, and by signing the delivery note the customer shall be deemed to have confirmed the receipt of the goods in good order, except to the extent of any damage thereto which is endorsed on the delivery note.
  • It is agreed that after delivery to and acceptance of the goods by the customer, the customer will inspect and test the goods and that no defective goods may be returned to the Supplier for credit more than ten (10) days after the delivery date, unless the customer is a consumer who is not excluded from the CPA by virtue of section 5(2)(b) of the CPA, in which event the goods have to be returned within six (6) months from the delivery date .
  • Any goods returned to the Supplier due to an error in ordering by the customer will be accepted for credit solely at the discretion of the Supplier and will in all cases be subject to a handling charge equal to 10% of the value of the order.
  • The goods delivered, erected or installed are deemed to be operating satisfactorily unless the Supplier receives written notification to the contrary from the customer within ten (10) days after the delivery of the goods and the customer returns same to the Supplier within such period, provided that where the customer is a consumer who is not excluded from the CPA by virtue of section 5(2)(b) of the CPA, the goods have to be returned within six (6) months from the delivery date .
  • All goods returned to the Supplier must be recorded on a “goods returned by customer” document.

 

  1. Prices, Payments, Credit Limits and Financial Circumstances

 

  • The price for a specific contract or order shall be as reflected in the quotation, or as agreed and/or amended by the parties in writing.
  • Unless otherwise agreed, payment terms shall be either payment against invoice or statement whichever is specified in the quotation or the contract.
  • Without prejudice to any of the rights of the Supplier, if any payment is not made on the due date it shall bear interest at the rate of three (3) percentage points above the prime interest rate charged on short term loans and facilities by the Supplier’s bankers, which interest shall be calculated from the date any such payment falls due until it is paid in full, compounded monthly in advance.
  • The Supplier shall be entitled, in its sole and absolute discretion, to appropriate any payments received on account of the customer’s indebtedness to any indebtedness whatsoever of the customer to the Supplier.
  • In the event of the customer disputing any amounts due by it to the Supplier, which dispute must be bona fide, then the customer shall only be entitled to withhold payment of that amount in dispute and shall not be entitled to withhold the full payment then due by it to the Supplier.
  • A certificate produced and suitably signed by the Supplier, detailing the invoice numbers, invoice dates, invoice amounts due, the interest rate applicable in terms hereof and the interest payable, shall be prima facie proof of the facts stated in such a certificate and will be binding upon the customer for purposes of the Supplier obtaining summary judgment against the customer.
  • Should the customer at any stage default in the observance of any of the payment terms hereof, the Supplier shall be entitled to claim the full amount then owing by the customer to the Supplier, notwithstanding the fact that such amount may not at the time be due and payable.
  • The Supplier reserves the right to make partial deliveries against any order and the customer shall make payment in respect thereof, as stipulated in the quotation or the contract.
  • Notwithstanding any other provision herein or elsewhere included, unless otherwise specifically agreed to, the supply of all goods to the customer by the Supplier shall be subject to an agreed credit limit, which is subject to the successful granting of credit insurance cover by the relevant insurer, contracted to the Supplier in this regard and as such may be subject to change in accordance with any change in such insurance cover from time to time. Once the agreed credit limit is reached or exceeded (as the case may be) and notwithstanding any agreed payment terms to the contrary, the Supplier shall be entitled to demand payment by the customer of such amount that will, in the Supplier’s sole discretion, be necessary to reduce the outstanding balance on the customer’s account after delivery of the relevant goods to an amount less than or equal to the agreed credit limit. The Supplier shall be entitled to suspend the supply and delivery of all goods to the customer until such payment is received. The Supplier shall not have any liability of any nature whatsoever towards the customer as a result of any such suspended supply and delivery of the goods.

 

  1. Ownership

 

  • The ownership in all goods sold, delivered or in any other way made available to the customer by the Supplier shall remain vested in the Supplier until the customer has made full payment of the contract price for such goods.
  • The Supplier shall have the right at any time to give notice of its continued ownership in the goods to every possessor and every landlord of premises in or on which the goods are stored or may be placed or installed, whether for sale, repair, assembly or otherwise.
  • Without prejudice to any of its rights in terms of this document or the law, the Supplier reserves the right to repossess goods in the event of the customer failing to make any payment on due date or at all.
  • Payment will only be acknowledged when the relevant deposit is acknowledged by the Supplier’s bankers as having been deposited into the Supplier’s bank account by the Supplier or the customer.
  • It is the responsibility of the customer to ensure that payments are deposited directly into the Supplier’s bank account (supported by adequate detail to identify the deposit).
  • The customer is obliged to advise the Supplier in writing of any change in ownership or control of the customer including the sale of the customer’s business or any part thereof, failing which the customer indemnifies and holds the Supplier harmless against any loss, damage claim or expense that the Supplier may incur as a result of any change of ownership or control, including but not limited to, any loss sustained by the Supplier as a result of continuing to grant any credit facilities to the customer.

 

  1. Risk

 

  • The risk in the goods shall pass from the Supplier to the customer upon delivery of the goods to the customer or its agent.
  • In the event of any goods being repossessed by the Supplier, the customer shall be liable for any damage sustained to the goods, from the time the goods were delivered by the Supplier to the customer until such time the goods were repossessed by the Supplier.

 

  1. Warranties

 

  • The Supplier gives no warranties of whatever kind regarding the goods. Any claim which the customer may have on account of the goods being defective or for any other reason whatsoever shall lie against the manufacturer and not the Supplier.
  • It is recorded that, whatever warranties may have been given by the manufacturer/s of the goods and which have been relied upon by the customer may be influenced or negated by:
    • any abuse and/or alterations to the goods;
    • any tampering with the goods;
    • the goods having been used under incorrect operating conditions or for purposes not intended;
    • the failure by the customer to properly take care of and maintain the goods; or
    • the customer having failed to comply with any usage and/or operating instructions provided by either the Supplier or the manufacturer of the goods.

 

  1. Limitation of Liability

 

  • The Supplier’s sole obligations and responsibilities to the customer in relation to the goods shall be in terms of the warranties as set out in clause 9, and furthermore, insofar as the relevant transaction is subject to the provisions of section 61 of the CPA, to indemnify the customer against and to hold the customer harmless from, any harm arising from the death or personal injury suffered by the customer, and from the loss of or physical damage to property belonging to the customer, caused by the goods supplied by the Supplier, subject to the limitations and/or exclusions and/or effects of sub-sections 61(4) and 61(6) of the CPA.
  • The Supplier shall under no circumstances be liable towards the customer for any other losses, damages or harm of whatsoever nature, irrespective of whether such losses, damages or harm may have been caused by the fault of the Supplier, provided the Supplier is not guilty of gross negligence.
  • The Supplier’s total cumulative liability to the customer shall under no circumstance exceed the greater of the value of items for which the Supplier may be held liable in terms of the warranties referred to above together with the liabilities provided for in clause 10.1, and the invoiced selling price of the goods, provided that the Supplier shall under no circumstances be liable for any indirect or consequential damage, including but not limited to loss of income, loss of revenue, loss of profits and any other economic loss, except to the extent caused by its gross negligence.
  • The customer, by accepting the goods subject to the terms and conditions contained herein, acknowledges that the contents of this clause 10, including the limitations contained herein, have been specifically pointed out by the Supplier and drawn to the attention of the customer, that the customer has read this clause 10 and that it fully understands and appreciates the implications thereof, that it had sufficient time to consider the acceptability of this clause 10 before it entered into the transaction of purchase with the Supplier, and that notwithstanding the provisions of this clause 10, it freely and voluntarily decided to proceed with the transaction to which this clause 10 applies.

 

  1. Relief from Duties under the OHSA

 

  • The customer undertakes to take such steps as are sufficient, necessary and reasonably practicable in order to ensure that the goods supplied in terms of a quotation or contract, will be safe and without risks to health when properly used, and will comply with the requirements of Section 10 of the OHSA and herewith releases the Supplier from any duties imposed on the Supplier in terms of Section 10 of the Act.
  • The Supplier shall under no circumstances assume any liability for any health and safety hazards arising out of the misuse or abuse of the goods sold, imported or supplied by the Supplier.

 

  1. Duties under the CPA

 

In the event that the customer will not be the end user of the goods and will on-supply the goods to third party users, the following shall apply:

  • The customer is familiar with the provisions of the CPA insofar as the supply of goods or services to “consumers”, as defined in the CPA, is concerned, and the customer hereby agrees to comply with all the provisions of the CPA insofar as they relate to such “consumers”.
  • Without detracting from the generality of the provisions of clause 12.1, the customer hereby undertakes with specific reference to Sections 49 and 58 of the CPA, to provide “consumers” with all such notices as may be required in terms of the aforesaid statutory provisions, and to provide same in the manner and format prescribed by the CPA.
  • The customer hereby indemnifies and agrees to hold the Supplier harmless against any claims, losses or liabilities made against, suffered by or established by any third party end-user against the Supplier, based upon or founded in the failure by the customer to comply with the provisions of the aforesaid Sections 49 and 58 of the CPA.

 

  1. Retentions

 

No retentions shall apply to any contract unless specifically agreed between the parties in writing and the customer shall under no circumstances be entitled to retain any portions of the contract price.

 

  1. General Price Variation

 

Quoted prices are based on, inter alia, the cost of transport and exchange rates ruling at the date of the Supplier’s quotation and, unless otherwise stated, if between that date and the date of delivery, variations occur in these costs, then quoted prices shall be amended to provide for these variations, the detail of which will be written into the Supplier’s quotation and/or contract or appear on the itemised invoice rendered to the customer. Such variations shall be reasonable.

 

  1. Law to Apply

 

These terms and conditions and any contract concluded between the parties shall be governed by and construed in accordance with South African law.

 

  1. Breach

 

  • These terms and conditions shall be deemed to be breached by any party if that party is placed into liquidation in terms of the Insolvency Laws operating in the Republic of South Africa, or in the case of any judicial management of that party or compromise by that party with its creditors, and may under such circumstances immediately be terminated by the one party by registered letter sent to the other party informing it of the termination.
  • Should either party commit a breach of any provision of these terms and conditions and fail to remedy such breach within fourteen (14) days of receiving written notice from the other party requiring it to do so, then the party aggrieved by such breach shall be entitled, without prejudice to its other rights at law, to claim specific performance of all the defaulting party’s obligations, whether or not such obligations would otherwise have fallen due for performance or to claim cancellation of this contract, in either event without prejudice to its right to claim damages, and who shall be entitled to claim payment of any legal costs incurred from the other party on an attorney and client scale.

 

  1. Dispute Resolution

 

  • In the event of a dispute between the parties remaining unresolved after reasonable attempts have been made to remedy the situation concerned, either party may refer the dispute to an independent third party to determine the dispute. The independent third party (“the expert”) shall sit as an expert and not as an arbitrator.
  • The expert shall be entitled to engage the services of any other person/s whom the expert in his sole and absolute discretion considers has particular knowledge or expertise relating to the matter/s in dispute.
  • The expert shall be, if the matter in dispute is:
    • ­primarily an accounting matter, the nominee of the Chairman for the time being of the Port Elizabeth Regional Association of the South African Institute of Chartered Accountants;
    • primarily a legal matter, a practicing Attorney or Advocate of at least ten (10) years standing nominated by the Chairman for the time being of the Port Elizabeth Attorneys (Side Bar) Association;
    • any other matter, the nominee of the Chairman for the time being of the Port Elizabeth Attorneys Association;
    • The aforegoing notwithstanding, if the parties agree upon the appointment of an expert, the person agreed shall act as an expert.
  • The expert shall not be bound to follow the general principles of law, but may decide the matter submitted to him according to what he considers just and equitable in the circumstances, regard being had to the principles of natural justice and, therefore, the strict rules of law need not be observed or taken into account by the expert in arriving at his decision.
  • Any hearing by the expert shall be at such venue or venues in Port Elizabeth as shall be selected by him.
  • In the absence of written agreement by the parties to the dispute, the expert shall be vested with entire discretion as to the procedure and manner to be followed in arriving at his decision.
  • The expert shall be entitled to direct who shall bear the costs of such proceedings, regard being had to the validity of the case presented by either party to the dispute, it being within the discretion of the expert to make such order as he feels just in the circumstances.
  • The parties shall use their best endeavours to procure that the decision of the expert shall be given within fourteen (14) days, or as soon thereafter as possible after it has been demanded.
  • The expert’s decision shall be final and binding upon the parties affected thereby, shall be carried into effect and may be made an Order of any competent Court at the instance of either of the parties.
  • This clause constitutes an irrevocable consent by the parties hereto to the proceedings in terms hereof and neither of the parties shall be entitled to withdraw therefrom or to claim at any such proceedings that it shall not be bound by this clause.
  • If a party shall fail to make representations to the expert, the expert, after having afforded such party reasonable opportunity to make such representations, shall be permitted to deliberate and decide upon the dispute in the absence of such representations.

 

  1. Domicilium

 

  • The parties choose as domicilium citandi et executandi and for the delivery of all notices arising out of these terms and conditions or the termination or cancellation of any contract, the physical addresses that appears on their respective letterheads and/or formal documents (invoices, orders, requisitions etc);
  • Any notice given and any payment made by any party to any other (“the addressee”) which:
    • is delivered by hand during the normal business hours of the addressee at the addressee’s domicilium shall be deemed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;
    • is posted by prepaid registered post from an address within the Republic of South Africa to the addressee at the addressee’s domicilium, shall be deemed, until the contrary is proved by the addressee, to have been received on the seventh (7th) day after the date of posting;
    • is sent by facsimile during the normal business hours of the addressee, shall be deemed, until the contrary is proved by the addressee, to have been received within one (1) hour of transmission.
  • No provision of this domicilium clause shall be taken as affecting the validity of any notice which is actually received by any party, whether at its domicilium or not and whether delivered in terms of the express provisions of this domicilium clause or not and any notice which is actually received by any party shall be deemed to be notice validly given.

 

  1. Cancellation Of Orders

 

Notwithstanding anything to the contrary contained in these terms and conditions, where the customer seeks to cancel any order placed on the Supplier for any reason whatsoever, excluding on account of a breach of these terms and conditions on the part of the Supplier, then, subject to the Supplier agreeing to such cancellation in writing, the customer shall be liable towards the Supplier for a cancellation fee equivalent to the higher of 5% (five percent) of the value of the cancelled order or the actual cost incurred by the Supplier in the procurement of the goods as well as for other expenses necessarily incurred in connection with the execution or planned execution of the order.

 

  1. General

 

  • No alteration of, variation of, or addition to these terms and conditions shall be of any force or effect unless reduced to writing and signed by the parties or their duly authorised representatives.
  • Subject to clause 20.1 above, this document contains the sole and entire record of the agreement between the parties. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein or otherwise created by operation of law.
  • No indulgence, leniency or extension of time which either party (“the grantor”) may grant or show to the other, shall in any way prejudice the grantor or preclude the grantor from exercising any of its rights in the future.
  • Neither party may cede its rights or delegate its obligations in terms of any contract concluded in terms hereof without the prior written approval of the other party.
  • In the event of an order being placed on the official order form of the customer, the customer shall be precluded from denying the validity of such order, notwithstanding the fact that such order may have been signed by a person not authorised to do so.
  • The customer hereby authorises the Supplier, subject to the provisions of the NCA and the regulations issued subsequent thereto, to transmit any details contained in this document (including personal details if applicable), as well as any information relating to its performance in meeting its obligations in terms of any contract and/or transaction concluded between it and the Supplier, to any credit bureau registered in terms of the NCA. The customer furthermore hereby acknowledges and agrees that such credit bureau may, in the normal course of its business, share any such information with any of its customers and other credit providers registered in terms of the NCA, for the Prescribed Purposes (as defined in terms of the Regulations published in Government Gazette No. 8477, Notice 28864).