Terms and Conditions - Ethemba Computers and Consulting

TERMS AND CONDITIONS OF SALE AND USE

APPLICATION
1. These terms and conditions shall apply to all goods sold by Ethemba Computers and Consulting cc (“the Company") to the Customer.
2. No variation of any term set out below, and no indulgence afforded by a party shall be construed as a waiver of the Company’s rights, unless the same is reduced to writing and signed by the parties.
ACCEPTANCE OF ORDERS
All orders are subject to stock availability or prior sale of any goods/stock.
PRICES
1. All prices quoted are subject to variation depending on unforeseen circumstances which may arise after the date of quotation and prior to despatch, namely: –
  1. The Company’s standard prices increase in terms of its price list;
  2. Changes in the cost of freight, insurance or customs duties resulting in cost increases;
  3. The rates of sub-contractors and/or suppliers increase.
2. Quotations shall remain valid for 14 (Fourteen) days from the date thereof.
PAYMENT
1. All payments shall be paid in full on delivery at your premises. No terms are permitted unless agreed by the Company in writing. Late payments shall attract interest at the legal rate applicable from time to time, and shall accrue as and from the date when payment is due.
2. Any medium used for payment such as the post, internet etc, shall be deemed to be the Customer’s agent, and shall be used at the Customer’s sole risk.
3. Payments shall be made free of deductions and set-off.
4. The Company shall have the right to withhold the supply of goods and/or services and to exercise its rights in terms of clause 5 if any amount due by the Customer is unpaid for whatever reason.
5. Should any amount not be paid by the Customer on due date, then the full outstanding amount which the Customer may owe the Company shall be come due and payable immediately, whether in respect of the goods in question or for any other reason, including amounts which are payable in the future.
6. Any payment arrangement which may be entered into between the Company and the Customer shall not constitute a novation of the debt or these terms and conditions. Consequently, should the Customer fail to pay in terms of such arrangement, or should such arrangement prejudice the Company’s rights in any way, the Company’s rights are reserved to proceed at any time, without notice, for the payment of the full debt.
DELIVERY
1. Any delivery note / invoice (copy or original) signed by the Customer and/or its authorised representative and/or its nominated agent and held by the Company, shall be prima facie proof that delivery was made to the Customer.
2. Any time given for delivery shall merely be an estimate. The Company shall not be held responsible or liable for any delays for any reason whatsoever, which will not entitle the Customer to cancel the order or to claim damages. It is specifically agreed, that in respect of this agreement, time is not of the essence.
3. Deliveries may need to be sub-contracted from time to time and are quoted for accordingly.
OWNERSHIP AND RISK
1. Risk in the goods shall pass to the Customer immediately upon signature of any document acknowledging receipt thereof by the Customer, its representative or its agent. Notwithstanding the passing of risk, ownership in all goods shall remain vested in the Company until the full purchase price has been paid. In the event of a breach of any of these terms and conditions by the Customer, or if the Customer is sequestrated or placed under liquidation or judicial management or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy a judgment granted against it within 7 (seven) days of the date of judgment, or changes the structure of its ownership, the Company shall be entitled to take possession of the goods without prejudice to any further rights vested in the Company, and is hereby irrevocably authorised to enter upon the Customer’s premises to take possession of such goods.
2. Any customer appointed transporter of the goods is the Customer’s agent.
SPECIFICATIONS
1. Descriptive matter, weights, dimensions and specifications appearing in any quotation or document provided by the Company are approximate only and are subject to modifications without notice.
2. Where goods are supplied according to the specifications supplied by the Customer, the Company or its suppliers will not be responsible for the efficient working of those goods nor the fitness of those goods for the purpose for which they are supplied whether said purpose is known to the Company or not.
EXCLUSIONS OF WARRANTY
Save to the extent provided in these conditions, the Company gives no guarantees nor warranties, express or implied, nor makes any representations of any nature whatsoever in respect of the materials utilized in any goods supplied or installed or repairs effected by it, nor as to the fitness of any such goods, installations or repairs for any purpose for which they are required whether such purpose be communicated to the Company or not. The sole liability of the Company shall be as provided for by their terms of the guarantee/warranty hereinafter set out.
PERFORMANCE
All performance figures are approximate only and the Company shall be under no liability whatsoever in respect of any failure to achieve provide or obtain such requirements.
LIMITATIONS OF LIABILITY
1. The Company shall not be liable for any damage or losses of whatsoever nature, whether direct, indirect or consequential, howsoever caused. The Customer’s sole relief shall be in terms of clause 11 below.
2. Should the Company supply goods or parts or do work free of charge in excess of it’s obligations under these terms and conditions, the Company shall be under no liability whatsoever irrespective of what is set out elsewhere herein, if such goods or parts prove in any way to be defective.
GUARANTEE / WARRANTY
1. A period of 12 (twelve) months guarantee, commencing from the date of sale will be applicable, and covering defective workmanship and/or defective materials, on condition that any of the said goods are returned to the Company’s premises by the Customer at its cost or as may otherwise be stipulated in writing by the Company. All expenses (including costs of insurance) incurred in the removal or replacement or carriage from and to the Customer of such goods or any part thereof will be for the Customer’s account.
2. This guarantee shall not apply to: –
  1. Any accessories whatsoever;
  2. Any goods used for any purposes whatsoever other than the genuine use for which goods were supplied;
  3. Any defective good/s which in the opinion of the Company has been damaged by fair wear and tear, or which has been damaged by the misuse of said item by the Customer or by any other form whatsoever or improper use of or from any alteration whatsoever to the goods;
  4. Any goods that have been modified, altered or repaired in any manner which, in the opinion of the Company, has caused the alleged defect, or has altered its performance or reliability;
  5. Use of spare parts other than those recommended by the Company.
3. Any claim under this guarantee will not be entertained unless the claimant: –
  1. Lodges its/his claim in writing to the Company within 7 (seven) days after the alleged defect in question has become apparent;
  2. At the same time, submits full particulars of the claim and of the reasons therefore stating in such particulars the date of purchase and full relevant particulars, including original invoice No. and serial numbers of relative products;
  3. Unless otherwise requested by the company, returns of alleged defective parts to the Company carriage paid.
4. The above guarantee is only valid when all conditions, as laid down by the manufacturer’s guarantee of any said goods, have been fulfilled.
GENERAL
1. This contract represents the entire agreement between the Company and the Customer and shall govern all future contractual relationships between The Company and the Customer.
2. No amendment and/or alteration and/or variation and/or deletion and/or addition and/or cancellation of these terms and conditions, whether consensual or unilateral or bilateral shall be of any force and effect unless reduced to writing and signed by a director of the Company. No agreement, whether consensual or unilateral or bilateral, purporting or obligate the Company to sign a written agreement to amend, alter, vary, delete, add or cancel these terms and conditions shall be of any force and effect unless reduced to writing and signed by a director of the Company.
3. No relaxation or indulgence with the Company may grant the Customer shall prejudice or be deemed to be a waiver of any the Company rights in terms of these terms and conditions.
4. The Customer shall not cede its rights nor assign its obligations under these terms and conditions. A change in the control of the management, whether through a change of the majority shareholding/membership or otherwise, shall be deemed to be a cession.
5. The Company shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of this terms and conditions to any third party without prior notice to the Customer.
6. The headings in this document are included for convenience and are not to be taken into account for the purpose of interpreting this contract.
7. Each of the terms herein shall be a separate and divisible terms and if any such term becomes unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of the other terms.
8. The Customer chooses the address appearing on the quotation as its domicilium citandi ET executandi for all purposes arising here from including the service of Court processes.
9. The Customer agrees to pay costs on the attorney and own client scale in respect of any costs order that may be granted against it in proceedings by the Company.
10. Goods are manufactured for standard commercial use, and are not intended for use in critical safety systems or nuclear facilities.
CONSUMER PROTECTION ACT 68 OF 2008
1. The Customer specifically acknowledges, confirms and warrants that, due to the nature of the goods sold, the Customer has made itself acquainted with all aspects of the goods, not restricted to but including the dimensions, weight, nature, capacity, output, specifications, operation, installation requirements, fuel consumption, servicing requirements, noise emissions, exhaust emissions, electrical capacity, connection requirements and operational requirements. By its signature hereto, the Customer warrants that the goods purchased are specifically suitable for the purposes they are purchased.
2. All costs of transport or removal from the Company’s premises shall be at the Customer’s cost.
3. The Customer warrants that all specifications, requirements and information provided to the Company in respect of any request to supply the goods was true, accurate, complete and provided all material facts, and acknowledges that the Company shall not accept the return of the goods in the event of any breach of this warranty.
4. Risk in the goods shall pass to the Customer immediately upon signature of any document acknowledging receipt thereof by the Customer, its representative or its agent.
5. The Customer acknowledges that, prior to delivery of the goods sold, it shall be afforded an opportunity to properly examine and evaluate the goods; and hereby waives all rights in the event that proper examination and evaluation of the goods has not been made, has been declined, or has been waived or ignored by the Customer, its representative or its agent, who accepts delivery of the goods by or on behalf of the Customer.
6. 13.6 Subject to clause 11, any goods sought to be returned in respect of any alleged defect or fault relating thereto, shall be delivered to the Company’s premises at the risk of the Customer, which goods shall be deemed to have been received by the Company by the signature by a Company representative of a document evidencing the receipt of such goods.
7. THE CUSTOMER AND THE COMPANY SPECIFICALLY AGREE THAT THE GOODS COMPRISE MACHINERY OR PARTS THEREOF, COMPONENTS OF SUCH MACHINERY BEING SUBJECT TO WEAR AND TEAR, DEVALUATION AND DEGRADATION BY THE NORMAL OPERATION OF SUCH MACHINERY ACCORDING TO THEIR PURPOSE. IN THE EVENT OF THE RETURN OF THE GOODS TO THE COMPANY IN TERMS OF SECTION 20 OF THE CONSUMER PROTECTION ACT, NOTWITHSTANDING THE AMOUNT OF TIME ELAPSED FOLLOWING DELIVERY OF THE GOODS, THE COMPANY SHALL BE ENTITLED TO A CHARGE CONTEMPLATED IN SECTION 20(5) AND 20(6) OF THE SAID ACT OF NOT MORE THAN 20% (TWENTY PER CENTUM) OF THE PURCHASE PRICE, BEING A GENUINE, REASONABLE AND ACCURATE PRE-ESTIMATE OF THE DAMAGES WHICH THE COMPANY SHALL SUFFER ARISING FROM THE CUSTOMER’S USE OF THE GOODS AND SUCH WEAR AND TEAR, DEVALUATION AND DEGRADATION ARISING THEREFROM.