Conditions of Sale
1. Interpretation
1.1 In these Conditions:
"Buyer" means the person whose order for the Goods or services is
accepted by the Seller.
"Seller" means Thirsty's Closed Corporation, (Registered in
Pretoria, South Africa No. 123456) PO Box 1145, Rivonia, 2128, South
Africa
"Agents" means companies’ acting as an agent of behalf of the Seller
or Buyer and may include, but is not restricted to; advertising
agencies, promotional companies and marketing agents
"Goods" means the Goods or services including any parts of them
which the Seller is to supply in accordance with the Conditions
"Services" shall mean and advice, artwork or consultancy work which
the Seller is to supply in accordance with the Conditions.
"Conditions" means the standard terms and conditions of sale set
out in this document and (unless the context otherwise requires)
includes any special terms and conditions agreed in writing between
the Buyer and the Seller in accordance with Conditions 2.3
"Contract" means the contract for the sale and purchase of the Goods
or Services.
"Writing" includes; facsimile transmissions, electronic mail and
comparable means of communication
1.2 Any reference in these Conditions to any provision of a statute
shall be construed as a reference to that provision as amended,
re-enacted or extended at the relevant time
1.3 The headings in these Conditions are for convenience only and
shall not affect their interpretation
2. Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods and
Services in accordance with any written or verbal order of the Buyer
which is accepted by the Seller subject to these Conditions which
shall govern the Contract to the exclusion of any other terms and
conditions subject to which any such order is made or purported to
be made by the Buyer
2.2 Quotations issued to the Buyer by the Seller may be withdrawn or
varied at any time and unless otherwise specified shall be
automatically withdrawn after forty-five days. Generally no binding
contract shall in any event arise until the Buyer’s written order
has been accepted by the Seller, however the sellers directors may
accept verbal orders at their entire discretion
2.3 No variation of these Conditions shall be binding unless agreed
in writing between the Seller and the Buyer
2.4 The Seller’s employees or agents are not authorised to make any
representations concerning the Goods & Services unless confirmed by
the Seller in writing
2.5 Any advice or recommendation given by the Seller or its
employees or agents to the Buyer or its employees or agents as to
the suitability, application or use of the Goods which is not
confirmed in writing by the Seller is followed or acted upon
entirely at the Buyer’s own risk, and accordingly the Seller shall
not be liable for any such advice or recommendation which is not so
confirmed
2.6 Any advice or recommendations given by the Seller or its
employees or agents to the Buyer or its employees or agents is to be
accepted by the buyer as best effort or endeavours but shall not
cause the Seller to be held liable for the consequences of the Buyer
or its employees or agents following such advice or recommendations
2.7 Any samples illustrations or descriptive material including but
not limited to particulars of shade and pattern and other
information contained in the Seller’s visuals, proofs or similar or
elsewhere shall not form part of the Contract and shall be treated
as approximate and for guidance only unless specifically stated
otherwise The Seller may at its discretion from time to time vary
the specification of the Goods or Services from that advertised
without notice to the Buyer provided that any such variations do not
constitute material alterations to the Goods or Services. That
notwithstanding, the Seller undertakes to notify the Buyer or the
Buyers Agent in the event that changes to the specification of the
Goods or Services is necessary after the Contract has been entered
into. Such communication shall be verbal or in writing and the
discretion of the Seller
3. Orders and Specifications
3.1 The Buyer shall be responsible to the Seller for ensuring the
accuracy of the terms of any order (including any applicable
specification) submitted by the Buyer and for giving the Seller any
necessary information relating to the Goods or Services within a
sufficient time to enable the Seller to perform the Contract in
accordance with its terms
3.2 The quantity, quality and description of any specification for
the Goods shall be those set out in the Buyer’s order provided such
order has been accepted by the Seller
3.3 No order which has been accepted by the Seller may be cancelled
by the Buyer except with the agreement in writing of the Seller and
on terms that the Buyer shall indemnify the Seller in full against
all loss (including loss of profit) costs (including the costs of
all labour and materials used) damages, charges and expenses
incurred by the Seller as a result of cancellation
3.4 If the Goods are to be manufactured or any processes to be
applied to the Goods by the Seller in accordance with a
specification submitted by or agreed by the Buyer, the Buyer shall
indemnify the Seller against all loss, damages, costs and expenses,
awarded against or incurred by the Seller in connection with or paid
or agreed to be paid by the Seller in settlement of any claim for
infringement of any patent, copyright, design, trademark or any
other industrial or intellectual property rights of any other person
which results from the Seller’s use of the Buyer’s specification
3.5 The Buyer accepts that as a result of the materials used, exact
pantone colours cannot be guaranteed and accepts that the Seller
cannot guarantee exact colour matches. Nonetheless, the Seller
agrees to use best endeavours to ensure that the colour match is a
close as is practicable given the type of material used in the
manufacturing and printing process.
4. Price of the Goods
4.1 In addition to the rights of the Seller under Condition 4.1
hereof the Seller reserves the right by giving notice to the Buyer
at any time before delivery, to increase the price of the Goods to
reflect any increase in the cost to the Seller which is due to any
factor beyond the control of the Seller (such as, without
limitation, any significant increase in the costs of labour
materials or other costs of manufacture) any change in delivery
dates, quantities or specifications for Goods which is requested by
the Buyer, or any delay caused by instructions of the Buyer or
failure of the Buyer to give the Seller accurate information or
instructions
4.2 All prices are given by the Seller on a delivered basis within
mainland UK which at the Sellers discretion or statement, may or may
not include delivery costs
4.3 The price is exclusive of any applicable value added tax which
the Buyer shall be additionally liable to pay to the Seller
4.4 All prices are given to the Buyer on the basis of delivery
taking place as set out in Clause 6.2 hereof. In the event of the
Buyer requiring delivery at a time earlier than the date specified
by the Seller from time to time the Seller shall be entitled to add
to the price of the Goods an additional charge for priority delivery
5. Payment Terms
5.1 Subject to any special terms agreed in writing between the Buyer
and the Seller, the Seller shall be entitled to invoice the Buyer
with the price of Goods or Services on or at any time after delivery
of the Goods or Services. Alternatively new customers may be
required to against a pro-forma invoice prior to an order being
accepted by the Seller
5.2 Unless otherwise agreed the Buyer shall pay the full invoiced
price of the Goods not later than FOURTEEN days from the invoice
date. The time of payment shall be of the essence of the Contract.
All payments shall be made in full without deduction in respect of
any set-off or counterclaim
5.3 If the Buyer fails to make any payment on the due date then
without prejudice to any other right or remedy available to the
Seller, the Seller shall be entitled to:
5.3.1 cancel the contract and suspend any further deliveries to the
Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods
(or the Goods supplied under any other contract between the Buyer
and the Seller) as the Seller may think fit (notwithstanding any
purported appropriation by the Buyer); and
5.3.3 charge the Buyer interest (both before and after any judgment)
on the amount unpaid, at the rate of four per cent per annum over
the base rate for the time being of BARCLAYS BANK PLC (such interest
being deemed to accrue from day to day and being compounded on the
last day of each calendar month) until payment is made
6. Delivery
6.1 Delivery of the Goods shall be made by the Seller delivering the
Goods at the address requested by the Buyer or the Buyers Agent
6.2 The Seller shall endeavour to deliver the Goods by the date
quoted for delivery but such date is not guaranteed nor shall the
time for delivery be of the essence unless previously agreed by the
Seller in writing. The date quoted for delivery shall be extended by
a reasonable period if there is any delay caused by industrial
dispute or by any cause beyond the reasonable control of the Seller
such as, but not limited to loss in transit. The Goods may be
delivered by the Seller in advance of the quoted delivery date upon
giving reasonable notice to the Buyer
6.3 Where the Goods are to be delivered in instalments, each
delivery shall constitute a separate contract and failure by the
Seller to deliver any one or more of the instalments in accordance
with these Conditions or any claim by the Buyer in respect of any
one or more instalments shall not entitle the Buyer to treat the
Contract as a whole as repudiated
6.4 If the Seller fails to deliver the Goods for any reason other
than any cause beyond the Seller’s reasonable control or the Buyer’s
fault, and the Seller is accordingly liable to the Buyer. The
Seller’s liability shall be limited to any reasonable additional
costs (if any) incurred by the Buyer to substitute the goods,
provided such goods are available from a local supplier and are of
the same specification and can be delivered in advance of any remedy
or alternative offered by the Seller. In the event that no
alternative local supplier can be located, then the Sellers
liability shall be limited to any costs incurred in the production
of the artwork, provided the costs have been previously advised to
the Seller.
6.5 If the Buyer fails to take delivery of the Goods or fails to
give the Seller adequate delivery instructions at the time stated
for delivery (otherwise than by reason of any cause beyond the
Buyer’s reasonable control or by reason of the Seller’s fault) then
without prejudice to any other right or remedy available to the
Seller, the Seller may
6.5.1 store the Goods until actual delivery and charge the Buyer for
the reasonable costs (including insurance) of storage; or
6.5.2 or advise the Buyer in writing that the Goods are available
for delivery and should the Buyer fail to make alternative
arrangements for receipt within 30 days, that the Goods will be
disposed of and that any additional costs and expenses incurred by
the Seller as a direct consequence will be recovered from the Buyer
and shall become due immediately for payment
7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer;
7.1.1 in the case of Goods to be delivered at the Seller’s premises;
or
7.1.2 in the case of Goods to be delivered otherwise than at the
Seller’s premises, at the time of delivery or, if the Buyer
wrongfully fails to take delivery of the Goods, the time when the
Seller has tendered delivery of the Goods
7.2 Notwithstanding delivery and the passing of risk in the Goods,
or any other provision of these Conditions, the property in the
Goods shall not pass to the Buyer until the Seller has received in
cash or cleared funds payment in full of the price of the Goods and
all other Goods agreed to be sold by the Seller to the Buyer for
which payment is then due
7.3 Until such time as the property in the Goods passes to the
Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary
agent and bailee, and shall keep the Goods separate from those of
the Buyer and third parties and properly stored, protected and
insured and identified as the Seller’s property. Until that time the
Buyer shall be entitled to resell the Goods in the ordinary course
of its business, but shall account to the Seller for the proceeds of
sale or otherwise of the Goods, whether tangible or intangible,
including insurance proceeds, and keep all such proceeds separate
from any moneys or property of the Buyer and third parties and, in
the case of tangible proceeds, properly stored, protected and
insured
7.4 Until such time as the property in the Goods passes to the Buyer
(and provided that the Goods are still in existence and have not
been resold) the Seller shall be entitled at any time to require the
Buyer to deliver up the Goods to the Seller and, if the Buyer fails
to do so forthwith, to enter upon any premises of the Buyer or any
third party where the Goods are stored and repossess the Goods
7.5 The Buyer shall not be entitled to pledge or in any way charge
by way of security for any indebtedness any of the Goods which
remain the property of the Seller, but if the Buyer does so all
monies owing by the Buyer to the Seller shall (without prejudice to
any other right or remedy of the Seller) forthwith become due and
payable
8. Warranties and Liability
8.1 Unless otherwise agreed the Seller does not warrant that the
Goods will correspond with their specification at the time of
delivery and will be free from defects in material and workmanship
8.2 Without prejudice to clause 8.1 above, in circumstances where
the Seller does provide a warranty in respect of the Goods, the
terms of which may be stipulated by the seller from time to time,
such warranty shall nonetheless be subject to the following
conditions:-
8.2.1 the Seller shall be under no liability whatsoever in respect
of any defect in the Goods arising from any drawing, design or
specification supplied by the Buyer
8.2.2 the Seller shall be under no liability in respect of any
defect arising from fair wear and tear, wilful damage, negligence,
failure to follow the Seller’s instructions (whether oral or in
writing) misuse, alteration, or repair of the Goods without the
Seller’s approval
8.3 Subject as expressly provided in these Conditions all warranties
conditions or other terms implied by statute or common law are
excluded to the fullest extent permitted by law
Conditions
8.4 Any claim which is based on any defect in the quality or
condition of the Goods or their failure to correspond with
specification shall (whether or not delivery is refused by the
Buyer) be notified to the Seller within forty eight (48) hours from
the date of delivery or (where the defect or failure was not
apparent on reasonable inspection) within a reasonable time after
discovery of the defect or failure. If delivery is not refused, and
the Buyer does not notify the Seller of any claim in accordance with
the provisions of this Condition, the Buyer shall not be entitled to
reject the Goods and the Seller shall have no liability for such
defects or failure, and the Buyer shall be bound to pay the price as
if the Goods had been delivered in accordance with the Contract
8.5 Where any valid claim in respect of any of the Goods which is
based on any defect in the quality or condition of the Goods or
their failure to meet specification is notified to the Seller in
accordance with these Conditions, the Seller shall, at its sole
discretion, replace the Goods (or the part in question) free of
charge or refund to the Buyer the Price of the Goods (or a
proportionate part of the price or provide alternative Goods or
Services) but the Seller shall have no further liability to the
Buyer
8.6 Except in respect of death or personal injury caused by the
Seller’s negligence, the Seller shall not be liable to the Buyer by
reason of representation, or any implied warranty, condition or
other term, or any duty at common law, or under the express terms or
the Contract for any consequential loss or damage (whether for loss
of profit or otherwise), costs expenses, or other claim for
consequential compensation whatsoever (and whether caused by the
negligence of the Seller, its employees or agents or otherwise)
which arise out of or in connection with the supply of the Goods or
their resale by the Buyer, except as expressly provided in these
Conditions
8.7 The Seller shall not be liable to the Buyer or be deemed to be
in breach of the Contract by reason of any delay in performing, or
any failure to perform, any or the Seller’s obligations in relation
to the Goods, if the delay or failure was due to any cause beyond
the Seller’s reasonable control:
8.7.1 Act of God, explosion, flood, tempest, fire, theft, computer
breakdown or similar, or accident;
8.7.2 strikes, or other industrial actions or trade disputes
(whether involving employees of the Seller or third parties)
9. General
9.1 Any notice required or permitted to be given by either party to
the other under these Conditions shall be in writing addressed to
the other party at its registered office or principal place of
business or such other address as may at the relevant time have been
notified pursuant to this provision to the party giving the notice
9.2 No waiver by the Seller of any breach of the Contract by the
Buyer shall be considered as a waiver of any subsequent breach of
the same or any other provision
9.3 If any provision of these Conditions is held by any competent
authority to be invalid or unenforceable in whole or in part then
the validity of the other provisions of these Conditions and the
remainder of the provision in question shall not be affected thereby
9.4 These Conditions shall be governed by and construed in all
respects in accordance with South African Law.