1.1 “Company” means Yellow Lemon Tree.
1.2 “Customer” means the party who or which purchases the Products from the Company and includes the Customer’s representatives, agents, successors and permitted assigns.
1.3 “CPA” means the Consumer Protection Act, Act Number 68 of 2008.
1.4 “Contract” means any contract or agreement arising out of the acceptance of this offer, whether this contract arises out of any offer made by the Company and accepted by the Customer now or in the past, or an offer made by the Customer and accepted by the Company now or in the past and is subject the terms and conditions of this agreement, that supersedes any other written agreement and/or oral agreement and/or representation made between the Company and the Customer.
1.5 “Products” means the products sold to the Customer by the Company which form the subject matter of the Contract.
2 IMPORTANT NOTICES
2.1 These terms and conditions automatically apply and regulate the basis of the sale and purchase of goods, products, equipment, materials and/or services that the Company sells and delivers to the Customer. In the event that the Customer is a consumer for the purposes of the “CPA”, then the provisions of clauses 11.6.3 and 12.3 hereunder will not apply to the Customer, as the Customer is not regarded as a consumer in terms of the “CPA”.
2.2 Nothing in this contract as well as the terms and conditions are intended to or must be understood to unlawfully restrict, prohibit limit or avoid any rights or obligations, as the case may be, for either party in terms of the “CPA”.
3.1 These standard terms and conditions encompass the entire agreement between the parties regarding the sale and purchase of goods, products, equipment, materials and/or services between the Company and the Customer.
3.2 No other terms and conditions, whether express, tacit or implied shall apply to this contract, irrespective of the circumstances under which the contract was entered into. No alteration, amendment or variation of these terms and conditions shall be of any force or effect unless and until such alteration, amendment or variation is reduced to writing and signed by the Company and the Customer.
3.3 All provisions and the various clauses of this contract are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other.
3.4 Any provision or clause of this contract which becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatsoever, shall, in such jurisdiction only and only to the extent be treated as not forming part of the contract and the remaining provisions and clauses of this contract shall remain of full force and effect.
4.1 Quotations submitted by the Company will, unless otherwise stated therein, be capable of acceptance so as to bring into existence a contract, within a period of 7 (seven) days from the date of the relevant quotation, where after it will be subject to withdrawal and/or alteration by the Company.
4.2 The Company’s distributed publications are maintained as sources of general information and are not binding in any way.
4.3 All prices quoted include value added taxation (VAT), and exclude charges for installation of the sale and purchase of goods, products, equipment, materials and/or services, surcharge and delivery, unless otherwise stated therein.
4.4 Notwithstanding clause 4.1 above and clause 5.1 below, the quoted prices in respect of the sale and purchase of goods, products, equipment, materials and/or services may be increased by the Company at any time, prior to delivery, in the event of:
4.4.1 A material, quantity and/or quality change in the Customer’s order;
4.4.2 Where the Products are imported, in the event of an escalation in any importation costs, including but not limited to the generality of the a foregoing, the foreign exchange rate, raw materials and costs of carriage and insurance.
4.5 Where quoted prices specifically include installation charges, such charges may be increased at any time prior to commencement of installation, due to an increase in labour charges, transportation, equipment or insurance costs or due to a revision or variation by the Customer of the installation project.
4.6 An increase in quoted prices will be communicated to the Customer within a reasonable period of time, when the Company becomes aware of the increase. Such an increase shall be deemed to be of effect and force as soon as the Customer is notified and accordingly the Customer accepts full, unconditional and irrevocable liability for the payment of such an increase.
5 ACCEPTANCE OF CONTRACT
5.1 The contract shall come into existence when the Customer provides the Company with written notice of its acceptance of any quotation given by the Company, within 7 (seven) days thereof, or when the Company accepts in writing any order for the Products placed by a Customer.
5.2 The Customer’s order and/or acceptance of a quote is binding on the Customer and in the event that the Customer cancels the order or accepted quote, the Company may charge the Customer a reasonable cancelation fee. Such an order and/or quote will automatically incorporate the terms and conditions of this agreement and as a result thereof, the order and/or quote will be regulated by these terms and conditions.
5.3 Notwithstanding the provisions as stipulated in clause 5.2 above, the Customer may not cancel an order or accepted quote where that quote or order relates to goods, products, equipment, materials and/or services that the Company has been expressly or implicitly either directly and/or indirectly been required, requested and/or expected to procure, create or alter specifically to meet and comply with the Customer’s requests and requirements.
5.4 The Customer acknowledges, admits and agrees that the Customer is aware of the fact that the Company’s sales representatives have no authority of any nature whatsoever to vary, alter and/or amend any terms or conditions of sale or purchase and accordingly the Company assumes no liability and shall not be bound by any statements, warranties or representations made by such sales representatives unless signed by a manager or director of the Company whom has been duly authorised to do so.
5.5 The Customer may only cancel a contract if agreed thereto by the Company in writing and upon payment of reasonable charges based upon expenses already incurred and commitments made by the Company.
6 PURCHASE PRICE AND PAYMENT
6.1 The purchase price of the goods, products, equipment, materials and/or services shall be paid to the Company in full and without and deduction or set-off, upon presentation of the Company’s tax invoice relating thereto.
6.2 Should the Customer fail to make payment on the due date then all amounts owing by the Customer to the Company from whatsoever cause, whether or not the date for payment has arrived, will immediately become due and payable by the Customer and the Customer shall immediately forfeit all discounts of whatsoever nature which may have been expressly granted to it by the Company.
6.3 Unless otherwise agreed in writing, any amount not paid on due date shall bear interest at a rate of 2% (two percent) above the publicly quoted basic rate of interest, compounded monthly in arrears and calculated on a 365 day year, from time to time published by First National Bank as being its prime overdraft rate, as certified by any representative of that bank whose appointment and designation it will not be necessary to prove, from due date until date of payment, both days included.
6.4 In the event that a Customer is a foreign person and a fluctuation of more than 5% (five percent) occurs in the rate of exchange between the South African Rand and the currency applicable to the foreign Customer in any period of 30 (thirty) days, the Company shall have the right but not the obligation to increase the purchase price of the Products proportional to any such fluctuation, upon 7 (seven) days’ written notice to the Customer.
6.5 The Company may at its sole discretion allocate any payments received to any order and/or quote and/or arrear account of the Customer either in the past, present and/or future.
7.1 Unless otherwise stated or agreed in writing the Company is not responsible for the delivery and/or transportation of the goods, products, equipment, materials and/or services and the Customer is accordingly responsible for all costs related to the delivery of the goods, products, equipment, materials and/or services
7.2 The Customer acknowledges that delivery dates given in advance are estimated and will be made subject to prior orders on file with the Company. The Company will use its best endeavours to ensure that delivery is completed as far as reasonably possible after the estimated delivery date. Notwithstanding the a foregoing, the Company shall not be liable for failure to perform or delay in performance hereunder resulting from any cause beyond the Company’s control, fire, labour difficulties, transportation difficulties, interruptions in power supply (including but not limited to what may be termed “load shedding” or “black-outs”) and delays in usual sources of supply, major changes in economic conditions, breakdown of machinery or any cause beyond the Company’s control, or whether caused by negligence or otherwise. The provisions of clause 11.2 below shall apply hereto as if specifically amended.
7.3 Subject to a quote or written agreement between the parties providing to the contrary, risk of the goods, products, equipment, materials and/or services shall pass to the Customer upon delivery, regardless of whether or not the Company has agreed to effect installation of the Products.
7.4 The Customer shall immediately upon receipt of the goods, products, equipment, materials and/or services be allowed to inspect the goods, products, equipment, materials and/or services and the Customer must inform the Company of any errors by way of written notice within 7 (seven) days of receipt of the goods, products, equipment, materials and/or services. Should the Customer fail to notify the Company of any imperfections and/or impurities the Customer will have automatically and by default waived any claim of any nature whatsoever.
7.5 Any of the goods, products, equipment, materials and/or services delivered to the Customer in error will only be considered for return by the Company provided that such Products are undamaged, have not been tampered with in any way and are not defaced in any way same t be returned in its original packaging.
7.6 If the Customer, due to some fault of its own, cannot accept or should it request the Company in writing to suspend or delay delivery of the Products, the Company reserves the right to claim any additional costs involved from the Customer.
7.7 Ownership of the goods, products, equipment, materials and/or services shall not pass to the Customer, until the Customer has paid for the goods, products, equipment, materials and/or services in full.
7.8 In the event of incomplete and/or partial delivery of goods, products, equipment, materials and/or services for any reason whatsoever, the Customer hereby acknowledges, confirms and consents that the Customer may not withhold payment of the Company’s invoice for any reason whatsoever.
8 INSTALLATION AND ASSEMBLY
The Company is under no obligation to effect installation or assemble the goods, products, equipment, materials and/or services at the premises of the Customer. However, if the Company agrees in writing, to effect installation or assembly of the goods, products, equipment, materials and/or services, the following terms and conditions shall apply, unless otherwise agreed in writing:
8.1 The Company may use any contractor or sub-contractor of its choice to effect installation or assembly;
8.2 Any deposit in respect of the installation or assembly, which may be requested by the Company will, in addition to any other rights which the Company may have in law, be forfeited by the Customer as liquidated damages in the event of a breach by the Customer of any of the terms of the contract;
8.3 To the extent applicable, the Company shall not commence installation or assembly unless the area to which the goods, products, equipment, materials and/or services will be installed or assembled has been prepared according to the specifications of the Company. The Company shall not be responsible for any delays or additional costs arising out of the failure of the Customer to procure that the relevant area complies with the specifications of the Company;
8.4 The Company will use its best endeavours to ensure that installation or assembly is completed as soon as is reasonably possible after the date on which installation or assembly commences, but time for the completion of installation or assembly shall only be of the essence if a completion date is agreed in writing with the Company. Notwithstanding this, no responsibility will be accepted by the Company for delays due to forces beyond its reasonable control;
8.5 The Customer indemnifies and holds harmless the Company against any and all liability which may arise in the event of death or injury to, or pecuniary loss suffered by, any contractor, sub-contractor or employee of the Company in the course and scope of his/her employment in connection with the installation or assembly, as a result of the negligence or wilful misconduct of the Customer, its officers, employees or agents; and
8.6 The Customer acknowledges, admits and agrees that the Company is not conducting and/or operating its business as an installer and by virtue of the aforementioned, any incorrect installation and/or erecting of goods, products, equipment, materials and/or services cannot and will not be contributed to the Company either directly and/or indirectly for any reason whatsoever.
9.1 No products will be granted to a Customer on “Appro”.
9.2 Goods, products, equipment, materials and/or services sold and delivered may only be returned within 7 (seven) days from invoice date, upon presentation of a receipt and in original packaging, subject to the condition that the goods, products, equipment, materials and/or services are returned in their original condition and is undamaged.
Notwithstanding what is contained in clause 9.2 above, the Customer may not return goods, products, equipment, materials and/or services that have been discounted, are on sale or that the Company has been expressly or implicitly required or expected to procure, create or alter specifically
10.1 Notwithstanding prior delivery and passing of risk: – ownership, right, title and interest shall remain vested with the Company until the purchase price or any other amounts owing to the Company in respect of the goods, products, equipment, materials and/or services or the installation thereof (if applicable), have been paid in full.
10.2 Until the date of transfer of ownership, the Customer will not do or omit to do anything which may adversely affect the Company’s proprietary rights and ownership.
10.3 Without limiting the generality of the foregoing, the Customer shall notify its Landlord (if applicable) that the goods, products, equipment, materials and/or services are owned by the Company and that the goods, products, equipment, materials and/or services is the sole and exclusive property of the Company.
10.4 In addition to the aforementioned, the Customer agrees that until the date of transfer of ownership, regardless of whether or not such goods, products, equipment, materials and/or services have been installed, that the goods, products, equipment, materials and/or services shall at all times remain separately identifiable regardless of whether the Products have been installed or not.
11.1 In addition to any other specific exclusions of liability contained herein and unless otherwise expressly stated herein, the parties agree that the Customer shall have no claim against the Company for any loss or damage, of any nature, occasioned by any defect in any product applied or any imperfections and/or manufacture imperfections and/or impurities.
11.2 Any failure to provide adequate instructions in respect of any hazard that might arise form the use or incorrect use of the goods, products, equipment, materials and/or services, save to the extent that the Customer is a Consumer for the purposes of the CPA and such loss or damage is contemplated in Sections 55, 56 and 61 of the CPA, and provided that nothing in these terms and conditions must be construed in any way limiting these rights of the Company to raise such defences as may be available to it at common law or in terms of any statute.
11.3 In the event that the Company provides advice regarding the application of the goods, products, equipment, materials and/or services at the request of the Customer, the liability of the Company in respect of the non-suitability of the Products for the purpose for which they are used will be limited to the selling price of those Products.
11.4 The Customer hereby indemnifies and holds the Company harmless against any losses, expenses, costs or damages of whatsoever nature incurred by the Customer arising from any wilful misconduct or gross negligence of the Company.
12 DEFAULT AND NON-PAYMENT
12.1 Should the Customer fail to make payment upon due date of any amount due and owing or payable, or commit any other breach of the terms of a contract, the Company shall be entitled, at its option without notice and without prejudice to any other right which it may have, including the right to claim damages arising out of the breach or the termination of the contract, to cancel such contract forthwith, and/or to declare all amounts owing by the Customer to be immediately due and payable; and/or to suspend the carrying out of any of its then uncompleted obligations until payment is made.
12.2 No relaxation which the Company may have permitted on any occasion in regard to the carrying out of the Customer’s obligations shall prejudice or be regarded as a waiver of the Company’s rights to enforce those obligations on any subsequent occasion.
The Customer may not without the written consent of the Company cede, assign or otherwise alienate any rights or obligations which it may have in terms hereof or in terms of any contract with the Company, without the Company’s written consent, which consent will not be unreasonably withheld.
14 NOTICES AND DOMICILIUM
14.1 The parties hereto select as respective addresses for service of any documents the addresses set out in any order contemplated in terms hereof.
14.2 Any written notices in respect of this contract shall be sent by telefax or delivered by hand and shall be deemed to have been received on the day of transmission or delivery, whichever is applicable.
15 GOVERNING LAW AND JURISDICTION
15.1 This agreement and any contract shall be subject to the laws of the Republic of South Africa.
15.2 In terms of Section 45 of the Magistrates Court Act of 1944, as amended, the Customer hereby consents to the jurisdiction of the Magistrates Court having jurisdiction in terms of Section 28 of the said Act in respect of any action to be instituted against the Customer by the Company in terms of the contract. It shall nevertheless be entirely within the discretion of the Company as to whether to proceed against the Customer in such Magistrates Court or any other court having jurisdiction.
15.3 In the event of the Customer committing any breach of the contract or in the event of the Company being required to take any legal action, the Customer agrees and undertakes to pay the Company’s legal costs as between attorney and own client including collection commission, tracing fees, valuation charges, transport costs and other expenses in connection therewith.
16.1 In the event that the Customer is a juristic person, the signatory to this contract hereby unconditionally and irrevocably binds himself/herself to the Company as surety for and co-principal debtor of the Customer in respect of any and all of the Customer’s duties and obligations under this contract, and renounces the benefit of the legal exceptions of excussion and division, non- indebtedness, error in calculation and revision of accounts, the force and effect of which he/she acknowledges himself/herself to be fully acquainted with.
17.1 The person accepting these standard terms and conditions hereby warrants that he/she has due authority to enter this contract on behalf of the Customer.