The clause headings contained in this agreement are not to be used in the interpretation thereof.
Unless such meaning is inconsistent with the context, the following terms shall, throughout this agreement, have the meaning ascribed to them below:
"Cash Sale" means any sale of Goods by Pirtek to a Customer to whom Pirtek has not, prior to, or at the time of accepting the Customer’s order for such Goods, agreed to supply such Goods, or all Goods, on credit;
"CPA" means the Consumer Protection Act, 68 of 2008, as amended, together with any regulations passed in terms thereof.
"Credit Bureau" means any person, firm or association, that collects and/or publishes, for the information of third parties, records and information relating to the creditworthiness and/or debt payment records of any person/s;
"Credit Sale" means any sale of Goods sale of Goods by Pirtek to a Customer whom Pirtek has, prior to, or at the time of accepting the Customer’s order for such Goods, agreed to supply such Goods, or all Goods, on credit;
"Customer" means jointly and severally, the signatory hereto and/or any entity/person on whose behalf the signatory signs this agreement;
"Goods" means any goods sold or offered for sale by Pirtek to the Customer;
"Order" means a written order complying with the provisions of clause 5.1;
"Pirtek" means [registered name of company], trading under the name and style of "Pirtek" and its subsidiaries and associate companies as well as the franchisees of those entities, from time to time.
"Parties" means both Pirtek and the Customer.
"Quotation" means a written quotation provided to the Customer, stipulating the price at which Pirtek will supply the Goods that are the subject of the Order in response to which such quotation is provided, and whether such Goods;
The Customer hereby undertakes:
to notify Pirtek in writing of any change of address and/or telephone number and/or contact details of the Customer and/or its business, not less than 30 (thirty) days prior to the effective date of any such change;
not to sell or dispose of any Goods of which the purchase price has not been paid in full;
not to allow any Goods of which the purchase price has not been paid in full to become encumbered in any way;
to inform the landlord of any premises at which any Goods of which the purchase price has not been paid in full of Pirtek’s ownership of such Goods.
The Customer hereby unconditionally authorises Pirtek and its employees and/or agents:
to conduct credit enquiries relating to the Customer, by accessing any Credit Bureau database; and
to submit reports to any Credit Bureau as to the manner in which the Customer has performed in meeting its payment obligations in terms of this agreement;
in the event that the Customer fails to meet its obligations in terms of payment with Pirtek in terms of this agreement, to notify and record the Customer’s non-performance with any Credit Bureau; and
to record the consent of the Customer that any and/or all information disclosed by Pirtek to any Credit Bureau, in respect of the Customer, may be assessed by other institutions and used by them in making risk management decisions.
Quotations and orders
In the event that the Customer requires Pirtek to sell and deliver any Goods to it, it shall submit a written order to Pirtek, stating:
the type and quantity of the Goods required.
the address to which the Customer requires such Goods to be delivered; and
whether the Customer requires a Quotation.
If the Customer has indicated in any Order that it requires a Quotation, Pirtek shall, as soon as reasonably possible after receipt of the Order, furnish the Customer with a Quotation in respect of the Goods that are the subject of the Order, or if Pirtek does not accept the Order in respect of all the Goods that are the subject of that Order, in respect of those Goods in respect of which Pirtek does accept the Order.
All Quotations will be valid for a period of 14 (fourteen) days from the date of the quotation unless withdrawn sooner or otherwise stipulated and will expire on the conclusion of that period.
In the absence of any agreement to the contrary:
he prices quoted in any Quotation shall be understood to exclude value-added tax, packaging and delivery costs;
packaging and delivery costs shall be borne by the Customer.
If the Customer does not indicate in an Order that it requires a Quotation, Pirtek shall, as soon as reasonably possible after receipt of the Order, advise the Customer as to whether it accepts the Order in full or only in respect of specific Goods.
The Customer hereby acknowledges that the decision as to whether to accept any specific order from the Customer, in respect of any specific Goods, is in the sole, absolute and unfettered discretion of Pirtek.
A binding agreement for the sale of Goods shall be deemed to have been entered into between Pirtek and the Customer:
in respect of the Goods that are the subject of any Quotation, upon receipt by Pirtek of acceptance in writing from the Customer of such Quotation; or
where the Customer has placed an Order for any Goods without indicating that a Quotation is required, on acceptance in writing of the Order by Pirtek, in respect of the Goods in respect of which Pirtek has indicated its acceptance of any Order.
In the case of any Cash Sale, a deposit equal to 50% (Fifty percent) of the price of the Goods, as reflected in the Quotation, may be requested to be paid on submission of the relevant Order by the Customer, and the balance prior to delivery of the Goods. In the case of payments made by internet, bank transfer or cheque, payment will only be considered to have been made when the amount thereof has been received as cleared funds in Pirtek’s bank account.
In the case of any Credit Sale, the price of the Goods shall be paid by the Customer to Pirtek without deduction or set off in cash within 30 (thirty) days after the date of the invoice submitted by Pirtek to the Customer in respect of such Goods.
The Customer acknowledges that, notwithstanding that Pirtek may have agreed to supply any Goods to the Customer on credit at any time, it shall not be obliged to supply any further Goods to the Customer on credit or at all, if the Customer has failed to make payment of the purchase price of any Goods that are the subject of any previous Credit Sale accordance with the terms of clause 5.2.
Pirtek shall be entitled to charge interest on all overdue amounts at prime rate of interest charged by Standard Bank Limited, plus 5% per annum, alternatively the maximum interest rate applicable from time to time in terms of the National Credit Act 34 of 2005, if applicable.
The Customer agrees that in the event of any portion of the amount of any invoice being disputed, the Customer shall nevertheless pay the undisputed amount of such indebtedness according to the agreed terms of payment.
Any discount that Pirtek may have agreed to grant on the price of any Goods shall automatically be forfeited if payment in full is not made on the due date, in accordance with clause 5.1 above.
Reservations of ownership
Ownership of any and all Goods shall remain vested in Pirtek until the purchase price of such Goods has been paid in full.
Should the purchase price of any Goods at any time be due and payable by the Customer to Pirtek, any items in the possession of the Customer, or any person to whom such items have been sold by the Customer, which are of a type that matches the description of the Goods the purchase price of which has not been paid, shall be deemed to be those Goods unless the contrary is proved by the Customer.
Until the Customer has paid the full purchase price of any Goods, the Customer shall ensure that such Goods are adequately insured against all risks of loss, theft and destruction to which such Goods may reasonably be subject and shall furnish Pirtek with proof of such insurance
Delivery and storage
To the extent that the sale and delivery of any Goods by Pirtek constitutes a transaction to which the CPA applies in terms of section 5 thereof, the provisions of this clause 7 shall only apply to such sale and delivery to the extent that they are not inconsistent with the provisions of the CPA, including, without limitation, the provisions of sections 18, 19 and 20 thereof.
Should Pirtek, at the Customer’s request, agree to engage a carrier to transport the goods to the Customer’s premises or other destination of the Customer’s choice, then:
Pirtek is authorised to engage a carrier on such terms and conditions as it deems fit.
The Customer acknowledges that, if Pirtek is required to deliver any Goods at any place other than Pirtek’s business premises, and subject to the provisions of clause 7.3 below, Pirtek shall not, unless it has expressly agreed otherwise in writing, be required to deliver such Goods:
if delivery is to take place at a destination within 10 kilometres of Pirtek’s business premises, within a period of less than 5 days after the conclusion of the agreement for the sale of such Goods in terms of clause 4.7; and
if delivery is to take place at a destination further than 10 kilometres of Pirtek’s business premises, within a period of less than 10 days after the conclusion of the agreement for the sale of such Goods in terms of clause 4.7.
if delivery is outside of South Africa’s borders, then the Customer is responsible to arrange their own pickup and delivery.
The Customer indemnifies Pirtek against all demands and claims which may be made against it by the carrier so engaged and all liability which Pirtek may incur to the carrier arising out of the transportation of the goods.
The delivery periods set out in clause 22.214.171.124 and 126.96.36.199 shall, in the case of Goods that, at the time of Pirtek’s receipt of the Customer’s order for such Goods, are not available from Pirtek’s stock on hand at its business premises, be increased by a period of not less than 5 business days; and
The signature by any employee or agent of the Customer (whose authority the Customer shall not be entitled to deny or repudiate) of Pirtek’s official delivery note or way-bill or the delivery note or way-bill of any authorised independent carrier shall constitute prima facie proof of delivery of the Goods referred to.
Subject to clause 7.6, risk in any Goods shall pass to the Customer upon dispatch of those Goods by Pirtek.
The Customer may request Pirtek to store any Goods purchased and paid for by the Customer at the premises of Pirtek, in which event the Customer shall bear the risk of damage to, destruction or theft of the goods so stored.
Notwithstanding the content of clauses 7.1 above 7.3 above, time shall not be of the essence in respect of the delivery of any Goods, and Pirtek does not guarantee delivery of Goods on any specific date.
Pirtek shall be entitled, in its sole discretion, to suspend delivery of Goods as long as the Customer is in default with any payment due in respect of any Goods previously delivered to the Customer.
Returns and refunds
To the extent that the sale and delivery of any Goods by Pirtek constitutes a transaction to which the CPA applies in terms of section 5 thereof:
Pirtek will refund, replace or repair any Goods which, within 6 (six) months following delivery, are shown to be defective in respect of quality or workmanship;
In the event that any Goods are defective or damaged such Goods will only be replaced or repaired, or the purchase price of such Goods refunded, on receipt by Pirtek of written notice from the Customer advising of the fact that such Goods are defective or damaged and specifying the nature of the defects or damage thereto, accompanied by the invoice number of Pirtek’s invoice in respect of such Goods;
Should the Customer require Pirtek to replace any Goods, the Customer shall return such Goods to Pirtek’s business premises within 7 (seven) days of giving Pirtek written notice in terms of clause 8.1.2 above.
This warranty shall be not be valid where any defects or damages are not attributable to any act or omission by the Customer, where the Customer has used the Goods for a purpose other than that for which they were produced, or has tampered with the Goods; or stored them poorly;
This warranty will extend only to the Goods sold and delivered by Pirtek to the Customer and not to any accessories attached or installed by the Customer after delivery by Pirtek;
If the Customer elects to require Pirtek to repair any Goods and any further defects or damage manifest in such Goods within 3 (three) months of the date upon which such Goods are returned to the Customer after the completion of such repairs, which defects or damage do not result from misuse or tampering, Pirtek will advise the Customer, at Pirtek’s election, whether the goods will be further repaired, replaced or whether the purchase price paid for such Goods will be refunded to the Customer.
The warranty does not include and will not be construed to cover goods damaged as a result of misuse, tampering, poor storage or any un-authorised modification of the Goods by the Customer.
If, on return of any Goods, the Customer is found to have damaged the packaging of such Goods in any way the Customer shall be liable for any costs incurred by Pirtek in order to repackage the Goods for the purposes of resale it. Such costs will be deducted from any refund paid to the Customer by Pirtek.
To the extent that the sale and delivery of any Goods by Pirtek does not constitute a transaction to which the CPA applies in terms of section 5 thereof, subject to the provisions of clause 9 below, any and all warranties implied by law in respect of:
latent defects; or
the fitness of any Goods for the Customer’s purpose; are hereby excluded.
If the Franchise/Customer no longer requires the order whether due to poor planning or other reasons and wishes to return any unused Goods or to cancel an order a refund will only be granted if the request is made within 10 working days from the date the Goods were received.
Where a refund outside of the 10 working day period is agreed by Pirtek in its discretion, a restocking fee of 15% of the value of those Goods will be charged to the Franchise and deducted from any refund. Further if there are delivery costs, the costs will be for the Franchise account.
No returns on buy-outs that are non-stock items will be processed.
Limitations of liability
Subject to the provisions of section 61 of the CPA:
Pirtek’s total liability for damages, whether contractual or delictual, arising out of or in connection with the supply of any Goods shall be limited to a refund the purchase price of the Goods. Without limiting the generality of the aforegoing, in no event shall Pirtek be liable for any incidental or consequential damages including but not limited to loss of profits, loss of sales, expenses incurred in anticipation of Pirtek’s performance or lost production, whether suffered by the Customer or any third party.
Notwithstanding the provisions of clause 9.1.1 above, Pirtek shall in any event have no liability for loss or damage of any nature whatsoever arising out of or in connection with any defect in any Goods unless: –
The Customer, within seven (7) days of delivery of the Goods, has called upon Pirtek in writing to rectify the defect, affording Pirtek a period of not less than thirty (30) days to do so; and
no person not authorised by Pirtek has modified, altered or attempted to repair the Goods;
the Goods have only been used for the purpose for which they were designed or intended; and
The Customer has returned such Goods to the premises of Pirtek at the Customer’s own cost and packed in the original packaging within thirty (10) working days from date of delivery. Any returns for refund request outside of the 10 working days is to the Suppliers discretion and will incur a 15% restocking fee.
Insofar as any of Pirtek’s obligations are carried out by any of its servants, agents, sub-contractors, associates or subsidiaries, the provisions of this clause 8 shall operate for the benefit of each of them.
The Customer agrees that neither Pirtek nor any of its employees or agents will be liable for any innocent or negligent misrepresentations made to the Customer.
The Customer hereby indemnifies and holds Pirtek harmless against any claims made against Pirtek and/or the Customer for any undertakings of whatsoever nature given by the Customer whether in oral or writing to any third parties in respect of the supply of any Goods.
The Customer shall ensure that it is at all times adequately insured in respect of any claim that may reasonably be expected to be made against it arising out of or in connection with any defect in any Goods and indemnifies Pirtek to the extent that, as a result of any failure by the Customer to comply with the provisions of this clause, Pirtek is becomes obliged to pay any amount to any third party which, but for such breach, Pirtek would not have been obliged to pay.
For the purposes of this agreement, any of the following events shall be deemed to be "an event of breach":
Should the Customer default in paying any amount that becomes due and payable by it to Pirtek strictly on due date or commit any breach of any of these terms or conditions; or
Should the Customer, being a natural person, individual, die or be provisionally or finally sequestrated or surrender or make application to surrender his estate or commit any act of insolvency; or
Should the Customer be a partnership, and the partnership be terminated; or
Should the Customer being a company or close corporation, be placed under a provisional or final order of liquidation or judicial management; or
Should the Customer have a judgment recorded against it which remains unsatisfied for seven days; or
Should the Customer compromise or attempt to compromise generally with any of the purchaser’s creditors; or
Should the Customer enter into any transaction which has the effect of changing the beneficial ownership of the purchaser’s business; or
Should the Customer being a company or close corporation, enter into any transaction which has the effect of a change in the effective control of the company or corporation;
On the occurrence of any event of breach then, without prejudice to any other right it might have, Pirtek shall be entitled, but not obliged: –
forthwith to demand that the whole amount outstanding by the Customer from whatsoever cause arising, be paid immediately notwithstanding the fact that a portion of the amount would not otherwise yet be due in accordance with these terms and conditions; and
to cancel any agreement which exists between it and the Customer and suspend the carrying out of any of its then uncompleted obligations, in which event the Customer shall have no claim or claims of whatsoever nature against Pirtek arising out of such cancellation or the suspension by Pirtek to carry out any obligations.
Pirtek’s rights in terms of clause 10.2 above shall not be exhaustive and shall be in addition to its common law rights.
Pirtek shall not be responsible for, or liable because of, any delay in or failure, where such delay or failure is due to any event of force majeure. Force majeure shall mean any act or event beyond the reasonable control of the affected party and not caused by the fault, negligence or lack of diligence of such party, including but not limited to acts of God, the elements, accidents, fire, explosion, flood, war, riots, rebellion, strikes, revolution, blockade, restriction or other act or failure to act on any government. The obligations that are affected by force majeure, shall be deemed suspended so long as any such causes or contingencies prevent or delay its execution.
These terms and conditions constitute the entire agreement between Pirtek and the Customer in regard to any matter dealt with herein and no other agreements, representations or warranties between the parties, other than those specifically set out herein below, shall be binding on the parties.
No addition to, or variation, consensual cancellation or novation of this agreement, including this clause, and no waiver of any right contained herein, or its termination, shall be of any force or effect whatsoever unless reduced to writing and signed by the parties hereto or their duly authorised representatives.
No latitude, extension of time or other indulgence, which may be given or permitted by Pirtek to the Customer, shall operate as a waiver or novation of, or otherwise affect, any of Pirtek’s rights in terms of or arising from these terms and conditions.
Each undertaking by either or both of the parties contained in these terms and conditions will be construed as an agreement and undertaking independent of any other provision of these terms and conditions. The parties hereby expressly agree that it is not the intention of any party to violate any public policy, statutory or common law, and that if any sentence, clause, clause or combination of the same is in violation of the law of the Republic of South Africa, such sentence, clause, clause or combination of the same alone will be void in the jurisdiction where it is unlawful, and the remainder of such clause and this agreement will remain binding upon the parties hereto. The parties further acknowledge that it is their intention that the provisions of these terms and conditions be binding only to the extent that they may be lawful under existing applicable law of the Republic of South Africa, and in the event that any provision hereof is determined to be overly broad or unenforceable, the parties hereto agree to the modification of such provisions to the minimum extent required to make them valid and enforceable.
Pirtek shall be entitled to cede all its rights and delegate its obligations arising out of these terms and conditions or any agreement to supply any Goods to the Customer.
The Customer shall not be entitled to cede any of its rights or delegate any of its obligations in terms of these terms and conditions or any agreement to supply any Goods to the Customer without obtaining Pirtek’s prior written consent.
No relaxation which Pirtek may have permitted on any one occasion in regard to the carrying out of the Customer’s obligations shall prejudice or be regarded as a waiver of Pirtek’s rights to enforce its rights on any subsequent occasion.
These terms and conditions, and any agreement to supply any Goods to the Customer shall be governed and construed in strict accordance with the laws of the Republic of South Africa and all disputes, actions and other matters which may rise in connection with these terms and conditions or any agreement to supply any Goods to the Customer, shall be determined in accordance with such laws.
Pirtek shall be entitled, but not obliged to institute any proceedings against the Customer out of any agreement between the Customer and itself for the full balance outstanding, including current purchases, in any Magistrate’s Court having jurisdiction over the Customer, notwithstanding that the claim or the value of the matter in dispute may exceed the jurisdiction of the Magistrate’s Court. Further, the Customer agrees to be liable for all legal costs including costs on the scale as between an attorney and his own client and collection charges and tracing costs.
A certificate signed by any director or manager of Pirtek, showing the amount due and owing by the Customer to Pirtek at any given time shall be prima facie evidence of the amount due by the Customer and such certificate shall be sufficient for purposes of judgment or provisional sentence or other legal proceedings.
The Customer warrants to Pirtek that is representative has full power, authority and legal right to conclude this agreement for and on behalf of the Customer and that the conclusion of this agreement in the terms set out herein has been duly authorised by all necessary actions.
Domicilium citandi et executandi
The Customer nominates the address set out on the document attached hereto as its domicilium citandi et executandi for service upon it of all notices and processes whether in connection with any claim or any sum due to Pirtek or otherwise.
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