TERMS AND CONDITIONS: Secbands (Pty) Ltd (‘the Seller’)
1. Formation of contract
1.1 The customer (‘the Buyer’) is deemed to have accepted these terms and conditions on the earlier of:
1.1.1 the date it notifies the Seller that it accepts the Seller’s quotation; or
1.1.2 the date the Seller begins any services for the Buyer or supplies any of the Goods to the Buyer.
1.2 All quotations, offers, and tenders are made and all orders are accepted subject to the following terms and conditions. Except as otherwise provided in these conditions, all other terms and conditions, or
warranties whatsoever are excluded from any contract between the Seller and the Buyer unless expressly accepted in writing by the Seller.
1.3 If there is a conflict between these conditions and any other written terms contained in the Seller’s quotation, offer, tender, or acknowledgement of order, such other terms shall prevail.
1.4 Quotations shall be available for acceptance for a period of 30 days from date of issue to the Buyer at any time prior to the Buyer’s acceptance.
1.5 If any statement or representation has been made to the Buyer by the Seller, or its officers, employees, or agents, other than in the document(s) enclosed with the Seller’s quotation or acknowledgement of order, upon which the Buyer wishes to reply, it shall only be entitled to do so if the statement or representation is attached to or endorsed on the Buyer’s order and then only if the Seller subsequently confirms in writing to the Buyer that the Buyer is entitled to rely on the statement or representation.
1.6 Unless specifically agreed to the contrary, all commercial terms shall be interpreted in accordance with INCOTERMS published by the International Chamber of Commerce from time to time, current at the time the order is accepted.
1.7 These conditions cannot be varied or cancelled unless such variation or cancellation is in writing and signed by both the Seller and the Buyer.
1.8 These conditions remain in force even if the Seller is lenient in applying any of them or if the Seller fails to apply any of them.
2.1 Unless otherwise agreed in writing, all prices for the products sold by the Seller (‘the Goods’) are quoted net ex-works exclusive of VAT unless shown otherwise. If the Seller agrees to deliver the Goods at a place other than at the Seller’s premises, the Buyer must pay all packaging, transportation, and insurance costs and other charges incurred by the Seller in making or arranging such delivery.
2.2 Quotations in a currency other than South African rand may unless otherwise agreed in writing, be subject to amendment in the event of a fluctuation in the exchange rate prior to the date of invoice.
2.3 Unless otherwise agreed in writing, the Buyer shall pay for all taxes and other government-imposed charges (including, but not limited to, value-added, sales, import, export, and other taxes) that may be levied on the Goods, unless such taxes and other impositions have been specifically included in the prices quoted.
2.4 The prices quoted relate to the specific Goods referred to in the related quotation. Should the Buyer choose to change the specification of the Goods, and this results in an increase in costs to the Seller, prices will be increased accordingly.
3.1 Unless otherwise agreed in writing, the Buyer must make advance payment of 100% of the total price stated in the quotation, including VAT and any packaging, transportation, and insurance costs and other charges incurred by the Seller, by bank transfer to the Seller’s bank account detailed on the quotation and provide proof of such payment to the Seller before the Seller will become obliged to deliver the Goods ordered by the Buyer.
3.2 Where the Goods are delivered by instalments, the Seller may invoice each instalment separately and the Buyer must pay each invoice in accordance with these terms and conditions.
3.3 No disputes arising under the contract nor any delays in delivery, other than due to default by the Seller, shall entitle the Buyer to delay prompt payment in full.
3.4 If the Buyer defaults on or delays payment, the Seller shall be entitled, without prejudice to any other right or remedy, to do all or any of the following:
3.4.1 to suspend all further deliveries under the contract and under any other contract or contracts between the Seller and the Buyer then current, without notice;
3.4.2 to charge interest on any amount outstanding at the rate of a minimum of 2% per week of delay in payment, such interest being charged as a separate, continuing obligation not merging with any judgment;
3.4.3 to serve notice on the Buyer requiring immediate payment for all goods supplied by the Seller under this and all other contracts with the Buyer whether or not payment is otherwise due;
3.4.4 to sue for the price of the goods even though the title may not have passed to the Buyer;
3.4.5 to reclaim possession of the Goods delivered to the Buyer but not paid for in full.
3.5 Should expedited delivery be agreed and necessitate overtime or other additional costs, an extra charge may be made.
3.6 Should the delivery of the Goods be suspended or delayed due to the request or default of the Buyer, the Seller shall be entitled to payment for work already carried out, materials ordered and any additional costs incurred by the Seller as a result of such request or default.
3.7 Should an overpayment by the Buyer be made ( eg doubling on an invoice ) repayment will be made as soon as possible. There will be a bank transfer and administration cost levied of R150 or 1% of total whichever is greater. This will be deducted from the sum being repaid.
4.1 Unless otherwise agreed in writing, delivery of goods shall be given to the Buyer at the Seller’s premises.
4.2 The Seller must try to deliver the Goods by the time specified in the order or any document. Time is not of the essence in this contract and the Seller’s failure to meet such delivery time specified will not entitle the Buyer to claim damages or to cancel the contract.
4.3 The date for delivery shall in every case be dependant upon prompt receipt of all necessary information, source materials, final instructions, and approvals from the Buyer.
4.4 The Buyer shall accept in timely fashion delivery of the Goods when they are tendered by the Seller.
4.5 Failure by the Buyer to take delivery of, or to make payment in respect of, any one or more instalments of Goods delivered in accordance with the contract, shall entitle the Seller to treat the contract as repudiated by the Buyer either in whole or in part.
4.6 The Buyer shall be responsible for obtaining all applicable import authorizations and paying any import duty required to import the Goods into the country of delivery if delivered elsewhere than at the Seller’s premises.
4.7 Notwithstanding delivery, ownership of the goods shall remain vested with the Seller until the Buyer has paid to the Seller all sums (including any default interest) due by it to the Seller.
5.1 Unless otherwise expressly agreed in writing, Goods supplied by the Seller, shall be packed to provide adequate protection in normal conditions of transit of expected usual duration.
6.1 Unless otherwise agreed, risk shall pass to the Buyer (so that the Buyer is then responsible for all loss or deterioration of the goods or for any damage occurring to of by the Goods) at the time when the goods leave the Seller’s premises.
7.1 The Buyer may only cancel any order or part thereof if the Seller agrees thereto in writing and if the Buyer makes immediate payment to the Seller of all costs, expenses incurred by the Seller up to the date of cancellation and all profits lost by the Seller as a result of the cancellation.
7.2 If the Buyer is liquidated or sequestrated, or commits an act which, if the Buyer were a natural person, would constitute an act of insolvency in terms of the Insolvency Act, 1936, debts, or proceedings shall be commenced for the administration or liquidation of the Buyer (other than for a voluntary solvent winding up for the purposes of reconstruction or amalgamation), the Seller shall be entitled to cancel the contract in whole or in part by giving written notice to the Buyer without prejudice to any other right or remedy available to the Seller. If the Seller cancels the contract, in whole or in part, all amounts owing to the Seller by the Buyer shall immediately become due, owing and payable.
8.1 No variations to the Goods required by the Buyer shall be binding on the Seller unless agreed by the Seller and the Buyer in writing, including as part of such an agreement, any change to the contract price arising in consequence of the variation to the goods.
8.2 If the Seller agrees to any such variation, any dates quoted for delivery shall be extended accordingly and the price of the Goods will be amended accordingly.
9. Storage and Consents
9.1 If requested by the Buyer, the Seller will store the Goods in secure conditions, for subsequent delivery. The Buyer must pay the Seller the cost of such storage together with payment of the purchase price for those Goods.
9.2 The Buyer shall, if applicable, obtain such license, exchange control, or other governmental consents as may be required for the purchase and import of the Goods, unless otherwise agreed by the Seller in writing. The Buyer’s failure to obtain such consents shall not relieve the Buyer of its obligations under these conditions.
If the Buyer claims that any Goods delivered to it by the Seller are defective in any way, it must return such goods to the Seller within 30 days of the date of delivery and, subject to clauses 11.2 and 11.3, the Seller must replace the defective Goods with Goods in good order. If the Buyer fails to return the Goods to the Seller within 30 days of delivery, the Buyer shall have no claim against the Seller for such Goods and the Seller shall not be obliged to replace such Goods.
11.1 In the event of loss or theft or damage to any Goods before they leave the Seller’s premises, the Seller shall not be liable to bear the cost of replacing the lost, stolen, or damaged Goods.
11.2 The Seller shall rectify defective workmanship and/or goods as soon as reasonably possible unless these goods are supplied by the Buyer.
11.3 Except as provided in 11.1 and 11.2 above, the Seller shall not be liable to the Buyer for any loss or damage suffered by the Buyer whether direct, indirect or consequential, and whether arising out of any defect in the Goods, or delay in completing the Goods, or delay or loss in transit, or other act, omission, or default whatsoever.
12. Working tools and specimens
12.1 The engraved dies, plates, shims, film and other original materials produced or supplied by the Seller for the purpose of producing of supplying the Goods to the Seller, (“the Working Tools”),
are the property of the Seller and shall remain in the custody of the Seller in secure lock-up. Ownership in the working tools shall remain vested with the Seller at all times. They will only be used by the Seller for the purposes of carrying out this order or subsequent orders placed by the Buyer. All such working tools shall be destroyed by the Seller if so requested in writing by the Buyer, at any time after completion of outstanding orders.
12.2 The Seller may, for the purposes of its records, retain an example or copy of the Goods or any part thereof as specimen only. The Buyer agrees to the display by the Seller of such specimens as samples.
12.3 All drawings, documents, shims, confidential records, and other information supplied by the Seller, whether produced by itself or a third party, are supplied on the express understanding that copyright is reserved to the Seller (or the third party) and that the Buyer will not, without the written consent of the Seller, give away, loan, exhibit, or sell any such drawings, documents, shims, records or other information, extracts from them, or copies of them, or use them in any way except in connection with the Goods in respect of which they are issued.
13.1 The Seller shall not be required to produce any matter which in its opinion is or may be of an illegal nature.
13.2 The Buyer fully indemnifies the Seller in respect of any third party claims, costs, expenses and all other liabilities arising out of any infringement or any alleged infringement of copyright, patent or design or rights of ownership to a particular holographic image resulting from work undertaken by the Seller under this Agreement or subsequent orders of the Goods by the Buyer.
14. Force Majeure
The Seller shall be under no liability for any failure to perform any of its obligations under the contract if and to the extent that the failure is caused by an act of God, war, strike, lockout or other labour dispute, fire, flood, drought, electrical power outages, legislation, government restriction, shortages of labour or materials, breakdown of machinery, or other cause (whether or not similar to the foregoing) outside the control of the Seller.
15.1 These terms and conditions shall be governed and interpreted according to the laws of South Africa and in the case of proceedings issued against the Seller shall be subject to the jurisdiction of the South African courts only.
15.2 If these terms and conditions shall be or become void in whole or in part, the other provisions shall remain valid and enforceable.
15.3 Any notice given under these conditions must be given:
15.3.1 to the Seller at: Unit 2, Regent Park, Westlake Business Park, Tokai 7945 or PO Box 113 Constantia 7848
15.3.2 to the Buyer at: the address set out in the quotation.
15.4 These addresses are the respective domicilium citandi et executandi addresses of the parties.
15.5 Either party may change the address given by notice to the other in writing.
If the Buyer is a juristic person, the signatory to this contract binds himself/herself jointly and severally as surety for and co-principal debtor with the Buyer for the proper performance of the Buyer’s obligations in terms of this contract.
Accepting these Terms and Conditions here or any transaction on the Quotation supplied (ie Payment) will deem these Terms and Conditions as accepted and understood as full and final by the Buyer.