Sales Terms and Conditions

TERMS AND CONDITIONS OF SALE

DEFINITIONS

“Business Day”means any day other than a Saturday, Sunday or gazetted national public holiday in the Republic of South Africa:
“Company”means Kitchen Equipment Supplies(Pty) Ltd (Registration No. 2014/193044/07);
“Consumer”means a consumer as defined in the CPA
“CPA” means the Consumer Protection Act 68 of 2008 and any regulation thereto and as amended from time to time.
“Customer”means any person, including a Consumer, a Sole Proprietor, a Partnership,a Company a Close Corporation and the person with authority acting on behalf of any such entity with whom the Company undertakes any business or provides any advice, information or service, whether gratuitously or for reward.
“Goods”means any tangible object supplied by the Company to the Customer pursuant to a Quotation.
Notice” means any notice given by either Party to the other in writing, which notice must be addressed by the one Party to the other’s domicilium
“Order”means an oral or written request by the Customer to the Company for the Company to supply Goods and/or Services to the Customer.
“Party/Parties”mean the parties to these Terms & Conditions being the Company and the Customer.
“Price” means the Price agreed in writing between the Company and the Customer for the
Goods and/or the Services, excluding VAT;
“Quotation” means the Company’s written response to the Customer’s Order;
“Services”mean the Services provided by the Company to the Customer made orally or in writing by the Customer.
“Terms & Conditions” means these terms and conditions including any annexure.
“VAT” means valued-added tax levied in terms of the Value-Added Tax Act, 89 of 1991, as amended.
In these Terms & Conditions:

Words importing the masculine gender include the feminine and neuter genders and vice versa; the singular include the plural and vice versa and natural persons include artificial persons and vice versa;
Reference to a “person” include a natural person, Company, Close Corporation or any other juristic person or other corporate entity, partnership or any other association of persons.
Where any number of days is prescribed, those days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which event the last day shall be the next succeeding Business Day.
Where the day upon which any act is required to be performed is not a Business Day, the Partiesshall be deemed to have intended such act to be performed upon or by the next succeeding

PLACING OF ORDERS

Orders placed by the Customer must be either in writing or communicated orally
The Customer warrants that its employee, agent or servant is authorised:

to place Orders with the Company and to bind the credit of the Customer with the Company;
and
to sign any of the Company’s documentation pursuant to the sale of Goods and Services.
A written or oral Order shall give rise to a Quotation as set out in clause 5.
The Company may, in its discretion, require an oral order to be placed in writing in which event it shall be subject to clause 2.2. Acceptance of an oral order which is not required to be put in writing shall be confirmed by the production of the Company’s invoice setting out the Goods or Services and the Price.
It shall be the obligation of the Customer to ensure that Ordersplaced by it clearly and accurately specify, in all respects, the requirements of the Customer.
These Terms & Conditions shall govern all contractual relationships between the Parties notwithstanding receipt or acknowledgement of the Customer’s own order form or conditions referred to therein

PRICE

Unless otherwise agreed in writing,GoodsandServices shall be supplied at the ruling price on the date of dispatch from the Company.
The Price is subject to adjustment for any increases in the cost of Goods and Services that may arise between the date of acceptance of the Quotation and the delivery of the Goods and Services, arising directly or indirectly from any caus whatsoever, whether statutory or otherwise.
Unless otherwise expressly stated, the Price is exclusive of VATwhich shall be for the account of the Customer unless the Customer has given acceptable proof that the supply is a zero rated or is an exempt supply.The Customer must pay or reimburse to the Company the amount of any VAT simultaneously with the Price.
The Customer is obliged to pay to the Company in addition to the Price

the amount of any tax, duty or other charge of any nature whatsoever imposed by any law, regulation or enactment of whatsoever nature which comes into force on a date after the date on which any Price charged is determined;
for the avoidance of doubt, it is recorded that any increase as a result of fluctuations in the exchange rate between the Rand and any other currency used for the purchase of Goods will lead to a related increase in the Price;
any other additional cost of any nature whatsoever arising due to factors beyond the control of the Company. In particular, but without limiting the generality of the aforegoing, the Company shall be entitled to increase the Price in respect of any Goods and Services supplied in order to make provision for any increases in costs arising as a result of or during the period of any delay caused by the Customer.
Any expense incurred by the Company at the instance of the Customer in modifying or otherwise altering or making additions to the design, quantities or specifications of standard Goods, and any expenses arising as a result of suspension of work by the Company due to instructions given, or a failure to give instruction by the Customer, shall be added to the Price in respect of the relevant Goods.
Price lists, advertisements and brochures published by the Company in respect of its Goods and Services, shall not form part of these Terms & Conditions and cannot be relied upon by the Customer unless agreed to in writing by the Company.

PAYMENT TERMS

In return for the supply of the Goods and Services the Customer shall pay the Company the Price plus VAT and any amount due by the customer< in terms of clause 3.3 and 3.5.
In the event that the Company has granted the Customer credit facilities in writing, the Price plus VAT and any amount due by the customer in terms of clause 3.3 and 3.5 must be paid by the Customer, without deduction or set-off of any claims of the Customer against the Company,in accordance with the approved credit term
In the event of a non-credit sale or cash sale the Price plus VAT and any amount due by the Customer in terms of clause 3.3 and 3.5 must be paid by the Customer by way of electronic funds transfer, credit card payment, cash or cheque deposit into the bank account of theCompany, prior to dispatch, delivery or collection of the Goods and Services. The Customer must provide the Company with proof of such payment immediately it has been made. Irrespective of the method of payment, dispatch, delivery or collection of the Goods and Services shall only be permitted once the funds have been cleared by the Company’s bank
Should the Customer fail to clearly indicate to the Company which items appearing on the Company’s statement it is paying, the Company reserves the right to apply and allocate such payments as it deems fit to any debt then owing by the Customer.
Should any amount not be received by the Company on or before due date, all other amounts owing by the Customer to the Company shall immediately (and without notice to the Customer) become both due, owing and payable.
The Customer is not entitled to withhold payment for any reason whatsoever, notwithstanding that any dispute may be pending between the Parties nor shall the Customer be entitled to make any deduction from the Price or to apply set off in any manner.
All amounts payable by the Customer to the Company must be paid in the currency as invoiced, without deduction or set-off, and free of any exchange to the bank account specified by the Company in any relevant quotation, invoice or job card or at such other place as the Company may direct from time to time.
The Customer shall be liable for all bank charges incurred by the Company as a result of the payment method elected by the Customer.
The Customer shall not be entitled to set off any amount due to it by the Company against any indebtedness to the Customer.
All discounts, if any, shall be forfeited if any amount due to the Company is not made timeously.

QUOTATIONS

A Quotation given by the Company shall constitute an invitation to the Customer to do business.
The Company may revoke the Quotation at any time before acceptance.
A Quotation is open for acceptance for a period of 7 Business days of date thereof failing which it automatically lapses. No acceptance of a Quotation shall be valid and no contract for the sale of Goods and Services shall come into existence unless the Customer has accepted the Quotation, which acceptance shall be denoted by whichever is the earlier of:

the Customer’s written acceptance of the Quotation; or
the Customer’s payment of the Price as reflected in the Quotation.

Upon the Customer’s acceptance of the Quotation, an invoice shall be generated and forward the Customer for payment in terms of clause 4.3 or 4.4 or, if payment has already been made in terms of 5.3.2, for record purposes.
A Quotation is submitted by the Company as one indivisible transaction and must be accepted in its entirety. Any partial acceptance thereof by the Customer shall be invalid.
The Price is based on the rates of exchange, freight charges, insurance, rail costs, cost of labour and material and other charges ruling at the date of the Quotation. In the event of any material increases occurring subsequent to the date of acceptance of the Quotation in any of the aforesaid rates and/or charges, as the case may be, the Company will be entitled prior to delivery to furnish to the Customer with an amended Quotation reflecting such increases, which Quotation is required to be accepted in the same fashion as set out in clause 5.3.
A Quotation is subject to correction in respect of good faith errors made by the Company, its employees or agents.
The Price quoted by the Company is based on the site location as provided by the Customer. The Company reserves the right to increase the Price quoted should the site location differ from the initial site location provided by the Customer.

DELIVERY OF GOODS

Unless the Customer notifies the Company to the contrary in writing within 3 days of delivery, of any damage to the Goods, or of any missing Goods, then by its signature of the relevant delivery note, invoice, or other documentation provided by the Company, the Customer shall be deemed to have acknowledged that the Goods were received in good order, condition and repair and conforms in all respects with the quantity, nature and quality of the Goods purchased by the Customer. Any notification by the Customer in terms of this clause must indicate clearly and comprehensively the Customer’s complaint but shall not in itself be of any probative value if there should be a dispute between the Parties in regard thereto and in such event the Customer shall bear the onus of proving each and every element of its complaint.
Unless specified to the contrary by the Customer, delivery of Goods and Services shall be to the street address stated on the Quotation or invoice or job card and shall take place between the hours of 08h00 to 17h00 Monday to Friday, excluding public holidays.
Any delivery date and/or time indicated by the Company shall be regarded as the estimated date or time of delivery and shall not bind the Company to effect delivery on or near such date or time. Time is not the essence of the contractual relationship between the Parties.
Without detracting from the generality of clause 6.3, the Company shall not be responsible for delays in delivery or non-delivery of Goods or Services whatsoever due to causes beyond the Company’s control (for example, without limitation, adverse weather conditions, road congestion, labour-related actions, shortage of stock, delays on the part of subcontracted transport services), nor shall the Company be liable for damages or for any loss the Customer may suffer pursuant thereto, of whatsoever nature arising from the late delivery or non-delivery of Goods or Services.
. The Customer shall not be entitled to cancel or repudiate any Order and/or purchase and/or refuse delivery and/or claim damages from the Company due to late and/or non-delivery.
Should the Customer request a change in its requested delivery date and/or time when the Company has already incurred costs in attempting to comply with the date and/or time originally requested, the Customer shall be responsible for all additional costs and expenses incurred by the Company in altering the delivery date and/or time.
The Customer accepts responsibility and liability for:
whatever means or methods it chooses to adopt for the handling, placing, storage and consolidation of the Goods after discharge from any delivery vehicle; and
any damage to, fault or failure of the Goods resulting from such handling, placing, storage or consolidation of the Goods.
The Customer shall ensure that routes to and from the point of delivery of Goods and Services to site are safe and suitable for the delivery vehicle, and that full and free access is available for the delivery vehicle of the Company or its transport service provider.
The Customer must ensure that the delivery vehicle of the Company or its transport service provider are instructed to offload the Goods at the Customer’s desired point on the site. In the event of the Goods being offloaded at an incorrect point due to a failure by the Customer to so instruct, the Company shall not be liable for any loss arising therefrom, whether direct, consequential, special or general.
The Customer must sign the Company’s delivery note and this will constitute prima facie proof (sufficient evidence) that the type and quantity of Goods recorded thereon were delivered and accepted by the Customer. The signature of any employee of the Customer shall be sufficient proof that the Good delivered satisfy the Customer’s requirements.
Should the Customer utilise its own transport vehicle and/or any third-party service provider to transport the Goods, it does so at its own risk.
If the Company has any reason, in its absolute discretion, to be concerned about the creditworthiness of the Customer, the Company shall have the right to suspend and/or withhold delivery of Goods and Services to the Customer.
If the Company is prevented from effecting delivery of the Goods to the Customer due to any act or omission on the part of the Customer, the Company will be entitled to charge the Customer a reasonable fee for the storage of the Goods until it is no longer prevented from effecting delivery of the Goods. In addition, the Customer will be responsible for all additional costs and expenses incurred by the Company in the subsequent delivery of the Goods. Should any damage or harm occur to the Goods after the Company has tendered delivery and prior to delivery of the Goods (during the time the Goods are in storage) the Company will not be liable for such damage.
The Customer shall furnish all such information necessary to enable delivery of the Goods to be made. If the Customer fails or refuses to do so, or if it fails or refuses to take delivery, the Company shall, without prejudice to the provisions of clause 6.13 be deemed to have been delivered the Goods to the Customer upon notification by it to the Customer to that effect and the Company shall, in the case of a credit sale, be entitled to immediate payment notwithstanding the credit
terms.
If the Customer requires a third-party transport company to transport the Goods, the Company is hereby authorised to engage such third party on the Customer’s behalf on the terms deemed fit by the Company. Risk in the Goods shall pass to the Customer on collection of the Goods from the Company. The Company shall in its sole and absolute discretion obtain insurance on behalf of the Customer on the Goods whilst being transported. The Customer hereby indemnifies the Company against any claims that may arise from the engagement of such third party. The Customer shall reimburse the Company for any costs incurred in arranging delivery, including but not limited to, the costs of insurance. Any documentation purporting to evidence the said extra costs of insurance shall be deemed to be prima facie proof (sufficient evidence) thereof.
The Company reserves the right to refuse to enter the Customer’s site to make delivery if, in the Company’s sole and absolute discretion, it deems it to be unsafe.

OWNERSHIP AND RISK

Notwithstanding the delivery of any Goods to the Customer, ownership of the Goods shall not pass until the Company has received payment in full in respect of the Price of such Goods plus VAT and any amount due by the customer in terms of clauses 3, 4, 5 and 6. In the event of payment not being made timeously the Company reserves the right to recover possession of such Goods immediately, without notice and without the necessity to first cancel the agreement of sale in respect of such Goods.
Risk in the Goods shall pass to the Customer on delivery. Where the Customer appoints its own transport service provider to make delivery, and subject to clause 6.15, delivery and risk shall take place when, and at the place where the Goods are collected from the Company.
The Company reserves the right to inform the owner/landlord of premises in which the Goods are or at any time may be, of its reservation of ownership in the Goods. The Customer must to this end advise the Company of the name and address of the owner/landlord of any such premises and must promptly advise the Company of any change in the name and/or the address of any owner/landlord or of any new owner/landlord.
Notwithstanding clause 7.3 the Customer shall take all such steps as are necessary to notify interested third parties that ownership of the Goods has not passed to it. In particular, the Customer must inform the owner/landlord of the premises in which the Goods already are, or any time may be, of the provisions of this clause. The Customer must produce written proof of such notice to the Company on demand.

HANDLING FEE ON RETURN OF GOODS

The Company is not obliged to accept the return of any Goods and this clause shall not be used to imply that the Company is obliged to accept the return of any Goods
The return of Goods shall be at the Customer’s expense
The Goods must be in its original unopened box or wrapping. If the box or wrapping is open the Goods must be returned together with the original box or wrapping, with the packaging material together with the manufacturers operating manual, warranty card and any other original documentation. If the box or wrapping, or and one or all of the manufacturers operating manual, warranty card and any other original documentation is missing, no refund whatsoever will be given.
The Goods shall be returned in an unused and undamaged condition, including all parts and accessories.
Goods that have been specifically manufactured for the Customer’s to its specifications shall not be returnable.
Subject to clause 8.2 and if the Company agrees to accept return of the Goods, the Company reserves the right to levy a handling fee of 15% of the Price

RESPONSIBILITIES OF THE CUSTOMER

The Customer acknowledges that it is aware of fraudulent schemes which are perpetrated
whereby a change of bank details is advised on the Company’s letterhead or by other means.

The Customer agrees to notify the Company of any receipt by it of a notification of change in bank details of the Company. The Customer further agrees that any payment made by the Customer to any other bank account shall not constitute a valid discharge of the Customer’s obligation to make such payment. All loss suffered as a result of any amounts being paid by the Customer into any bank account other than the account of the Company as a result of the Customer not complying with the provisions of this clause, or otherwise, shall be borne solely by the Customer.

CERTIFICATE

The Customer acknowledges that a certificate signed by any manager of the Company (whose authority and appointment shall not be necessary to prove) as to the indebtedness of the Customer shall be prima facie proof of the amount of such indebtedness to the Company. Such certificate shall be sufficient proof of the Customer’s indebtedness for the purposes of provisional sentence and/or summary judgment proceedings against the Customer, or for any other purpose whatsoever.

EXTENSION OF TIME

No leeway, extension of time, leniency or indulgence which the Company may offer to the Customer shall in any way prevent the Company from enforcing any of its rights in the future, without notice, by requiring the Customer’s strict and timely compliance with each provision of these Terms & Conditions.

WARRANTY

The Company’s warranty in respect of the Goods and Services is set out in the Annexure hereto

JURISDICTION

The Parties consent, in terms of section 45 of the Magistrates’ Court Act 32 of 1944 (“MCA”) to the jurisdiction of the Magistrates’ Court for the district within which, at the time of the proceedings in question, has jurisdiction in terms of section 28 of the MCA regardless of the fact that the amount in issue may exceed the monetary jurisdiction of such Magistrates’ Court.
This consent to jurisdiction is in addition to the jurisdiction of any other competent court and shall not be a substitute for such jurisdiction

LEGAL COSTS

To the extent permitted by law, should the Company elect to take any legal action against the Customer arising from the breach of any provision of these Terms and Conditions where the Company engaged the services of an attorney and/or debt collector and/or tracing agent then the Customer shall be liable for all the relevant legal costs incurred between the Company and its attorney on the scale as between attorney and client, all fees and charges between the Company and its debt collector and all fees and charges between the Company and its tracing agent.

LIMITATION OF LIABILITY

To the extent permitted by law, the Customer hereby agrees to indemnify the Company against all claims of whatsoever nature which may be made against the Company by any third-party arising out of the use of the Goods and Services unless such claims arise out of gross negligence.
The Customer hereby acknowledges that it is aware that the Company is only a distributor of the Goods and is not in any way involved in the manufacture of the Goods. The Customer accordingly, to the extent permitted by law, hereby waives all claims of every nature whatsoever which it may have against the Company in respect of any loss of any nature whatsoever suffered by the Customer due to any of the Goods being defective (including without limitation due to any defect in the Goods, the Goods constituting an unsafe product, there being any failure, defect or hazard in any of the Goods or inadequate instructions or warnings being provided pertaining to any hazard arising from or associated with the use if the Goods as envisaged in terms of section 60 of the Consumer Protection Act, Act 68 of 2008, as amended).
The Company shall not be liable in contract, strict liability, warranty or otherwise, for any special, incidental or consequential loss or damages, such as, but not limited to, damage to property, delay, disruption, loss of product, loss of anticipated profits, loss of revenue, loss of anticipated savings, loss of use of any equipment or system, non-operation or increased expense of operation of any equipment or systems, cost of capital, or cost of purchase or replacement of any equipment or systems or loss of power.
For the purposes of this clause (Limitation of Liability), where reference is made to the Company, such reference includes the Company, the Company’s sub-contractors and suppliers, their respective partners, officers, directors, shareholders and employees.
All claims against the Company shall lapse after a period of twelve (12) months from the date on which the Goods are sold, or the Services rendered.
Any goods and property belonging to or owned by the Customer and which are retained by the Company for any reason whatsoever shall be retained at the Customer’s risk. The Company shall not be liable for any damage or loss howsoever arising and the Customer shall be obliged to take out appropriate insurance to cover all such losses suffered and/or damage occasioned thereto.

ALL THE TERMS

All the provisions contained in these Terms & Conditions shall bind the Parties and cannot be varied, altered, deleted or added to unless it is stipulated in writing and signed by the Parties

FINANCIAL CENTRE INTELLIGENCE ACT

The Customer acknowledges that in terms of Section 29 (1) of the Financial Centre Intelligence Act, No. 38 of 2001 (“FICA”) businesses are required to report any suspicious or unusual transaction or series of transactions to the Financial Intelligence Centre and in particular where the Company has received, or is about to receive, the proceeds of suspected unlawful activities in payment of the Customer’s indebtedness to the Company.
The Customer indemnifies or holds the Company harmless against any claim of whatsoever nature instituted against the Company for any damage or harm suffered by the Customer or a third party arising from any action taken by the Company in discharging its obligations in terms of FICA.

PERSONAL INFORMATION

The Customer hereby consents to the collection, processing and further processing of its Personal Information, as defined by the Protection of Personal Information Act, 2013 (POPI) by the Company for the purposes of conclusion and performance of these Terms & Conditions, and all purposes related thereto.
Processing may include the collection, receipt, recording, organization, collation, storage, updating or modification, retrieval, alteration, consultation, use; dissemination by means of transmission, distribution or making available in any other form; or merging, linking, as well as restriction, degradation, erasure or destruction of information.
The Customer undertakes to make available to the Company all necessary Personal Information required for the purpose of securing and facilitating these Terms & Conditions, and to ensure that this Information is updated as necessary.
The Customer consents to the collection of Personal Information from another source other than the Customer where this is necessary for the purpose described above
The Customer consents to the Company retention of its Personal Information beyond the termination of these Terms & Conditions as far as is permitted or required by law. The Company shall thereafter destroy, delete or de-identify such Information as soon as reasonably practicable after it is no longer authorised to retain the Information.

NATIONAL CREDIT ACT

The Customer acknowledges that the National Credit Act 34 of 2005 (“NCA”) provides in section 4(1)(a) that the NCA shall not apply to a juristic person with an asset value or annual turnover in excess of R1,000,000 (one million Rand).
The Customer further acknowledges that the NCA provides in section 4(1)(b) that the NCA does not apply to a large agreement (as defined in section 9(4)). The prescribed threshold for a large agreement is currently R250,000 (two hundred and fifty thousand Rand).

GENERAL

If a provision in these Terms & Conditions is held to be invalid or unenforceable, that provision shall be severable without affecting the validity or enforceability of the remaining part of that provision or the other provisions.
These Terms & Conditions shall be:
governed by the laws of the Republic of South Africa and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of the Republic of South Africa.
personal to the Parties and the benefit of it may not be assigned by either Party without the consent of the other, except as a necessary result of the operation of law.

Sales Terms and Conditions