In-Store Terms & Conditions
This is an Agreement to sell and supply goods to you, the Customer. Notwithstanding anything in your enquiry or specification or acceptance or order to the contrary, the following terms and conditions constitute the Agreement between us and you. By signing this document, you acknowledge that you are bound by the following terms and conditions which will be applicable to all agreements concluded between you and us unless otherwise agreed in writing and signed by both Parties.
Please note that this Agreement may in certain cases constitute an incidental credit agreement in terms of the National Credit Act and we refer you in this regard specifically to our terms of payment in clause 5 below.
IMPORTANT: Please read through these terms and conditions carefully before you sign the Application. Clause headings have been inserted for convenience only and shall not be taken into account in the interpretation of this Application.
- In these conditions the words defined shall have the meanings assigned to them hereunder-
- “ARB” – ARB ELECTRICAL WHOLESALERS (PTY) LTD;
- “the customer” – the person, partnership, firm, association, company or close corporation or other entity applyingfor credit from ARB in terms of this application for credit.
- “These Conditions” – these Terms and Conditions of Sale.
- “goods” – all the goods sold by ARB;
- “SATS” – South African Transport Services;
- “NCA” – the National Credit Act 34 of 2005, and regulations thereunder, as amended from time to time.
- “CPA”- The Consumer Protection Act 68 of 2008 and Regulations thereunder as amended from time to time.
- “POPIA-Protection of Personal Information Act 4 of 2013
- Unless inconsistent with the context, words relating to any gender shall include the other genders, words relating to the singular shall include the plural and vice versa and words relating to natural persons shall include associations of persons having corporate status by statue or common law.
CONCLUSION OF CONTRACT
- The customer may place an order for goods orally or in writing, which order shall constitute the customer’s offer.
- ARB shall be entitled to accept the customer’s order in whole or in part.
- Upon acceptance by ARB of the customer’s order a contract of sale upon the terms set forth in these Conditions
shall be deemed to have been concluded between the customer and ARB in respect of the goods which ARB has
agreed to supply.
- Any order form delivered to ARB which reflects the customer’s name shall be deemed to have emanated from the customer, and shall be binding on the customer, notwithstanding that such order may have been given or signed by a person not duly authorised by the customer.
- Each order that is accepted by ARB shall constitute a separate and distinct contract of sale in respect of the goods forming the subject of such order.
- The delivery of goods shall be by ARB, SATS or private carrier or in such other manner as may be expressly agreed between ARB and the customers
- SATS or any other carrier appointed by ARB shall be the agent of ARB.
- ARB shall be liable for any of the delivery charges of SATS or any other carrier appointed by ARB, unless otherwise agreed
- ARB shall have the right to deliver the goods in whatever quantities and on however many separate occasions as it in its discretion may decide.
- ARB’s delivery note signed or counter-signed by the customer or any person purporting to be an employee or agent of the customer, or any carrier appointed by the customer, shall for all purposes be deemed to be accurate in all respects and binding on the customer.
- Insofar as the delivery of goods is concerned, time shall not be of the essence of any contract of sale between ARB and the customer and any delivery or despatch dates mentioned in any quotation, order or any documentation shall be approximate only and not in any contractual effect. In the event of any delay in delivery by ARB, or failure to effect delivery, for any reason whatsoever other than a willful breach by ARB, then-
- the customer shall not be entitled to cancel the contract and
- the customer shall have no claim for any loss or damages against ARB as a result thereof.
PRICE AND PRICE INCREASES
- The price of the goods shall be as stated by ARB at the time of the conclusion of the contract unless varied in accordance with point 3
- It is recorded that such price is based on the cost to ARB of materials, labour, delivery charges, freight, import duty and the rate of exchange operating between the Rand and the currencies in the countries from which materials are purchased.
- If prior to delivery of the goods in terms of 3, there is any increase in such cost or change in such rate, or if any taxes or duties are levied or if any laws are promulgated which directly or indirectly increase the cost to ARB of the manufacture of the goods, ARB shall be entitled by written notice to the customer to increase the price of the goods by an amount equal to such increased cost or rate of exchange.
- If the customer disputes ARB’s right to increase the price of the goods in a particular case, or disputes the amount of any increases claimed by ARB, then-
- the customer shall give written notice to that effect to ARB within seven (7) days after receipt of notice of ARB’s intention to increase the price;
- if the dispute cannot be resolved between the parties, it shall be referred to ARB’s auditor for the time being who shall determine the increase in the price of the relevant goods (acting as expert and not as arbitrator) and whose determination shall be binding on the parties.
- if the customer does not dispute ARB’s right to increase the price of the goods or the amount of the proposed increase, in accordance with 4.4.1 that the increased price shall be binding upon the customer.
- The forgoing provisions shall not be construed as depriving the customer of any right it may have in terms of the National Credit Act (if applicable) to refer any dispute for alternative dispute resolution in terms of such Act.
- In respect of each sale of goods the purchase price shall be payable by the customer to ARB within 30 days after the date of ARB’s monthly statement reflecting such purchase price, unless otherwise agreed in writing.
5.2 In the event of ARB accepting any post dated cheque, promissory note or other bill of exchange from the customer in respect of any indebtedness of the customer, then the acceptance by ARB of such post dated cheque, promissory note or bill of exchange shall be without prejudice to ARB’s rights in terms of any contract, or according to law.
- If the price of any goods is not paid on due date, the customer shall be obliged to pay interest thereon at the maximum permissible rate of interest prescribed in terms of the National Credit Act from time to time, such interest to be reckoned daily and added to the arrear amount at the end of the month, from due date to date of full and final payment.
- All payments shall be made to ARB in South African currency and free of deduction and set-off.
- In the event of a customer failing to make payment of any amount on due date, then the full amount then owing by the customer (whether due or not) shall immediately become due and payable, without prior notice to the customer
- A certificate signed by any director of ARB (whose appointment need to be proved) reflecting the amount owing by the customer to ARB, and of the fact that such amount is due, owing and payable, shall be prima facie proof of the fact therein stated for the purpose of any action (whether by way of provisional sentence or otherwise), proof of debt on insolvency or liquidation, or for any purpose where the amount of such claim is required to be established.
SUSPENSION OF DELIVERIES
Without prejudice to any other rights that ARB may have in terms of these Conditions, or according to law:-
- if any amount due by the customer to ARB is not paid on due date, ARB shall have the right to suspend all further deliveries of goods to the customer and to cancel all sales of goods already concluded.
- Notwithstanding anything to the contrary herein contained, ARB shall have the right to suspend any delivery under any contract at any time if in its sole discretion it considers that-
- the amount owing by the customer (whether due or not) has reached the limit to which it is prepared to allow the customer credit or
- If it comes to its notice that the customer’s financial position has deteriorated; or
- If it no longer considers the customer to be creditworthy; or
- the customer does not acknowledge that any contract is upon the terms set forth in these Conditions
PASSING OF OWNERSHIP AND RISK
- Until such time as the customer has paid the purchaser price of all goods sold and delivered to it by ARB in full, the ownership of, and all rights in and to all such goods shall remain vested in ARB.
- ARB shall be entitled to take possession of any goods which have not been paid for in full and in respect of which payment is overdue, in which event the customer shall be entitled to a credit in respect of the goods so returned, being the price at which the goods were sold, or the market value thereof, whichever amount is the lesser.
- The risk in and to the goods shall pass from ARB to the customer on delivery notwithstanding that ownership will not pass to the customer until full payment of the purchase price.
CLAIMS AGAINST THE COMPANY AND RETURN OF GOODS
- No claim against ARB arising out of a sale of goods shall be capable of being enforced, and ARB shall not be liable in respect of such claim, unless a written notice setting forth the nature of the claim and the amount claimed has been delivered to ARB within fourteen (14) days of the delivery of the goods in respect of which the claim is made.
- Goods correctly supplied are not returnable without prior written consent of ARB and in any event shall not be considered unless arranged within fourteen (14) days of delivery and where accepted will be subject to a 25% handling charge.
- The customer acknowledges that no returns will be considered for any cable which has been cut to the customer’s specification
- Goods supplied for cash may not be returned under any circumstances
- The customer acknowledge that it is the customer’s responsibility to ensure that the goods delivered / collected are correct as ordered and suitable for the customer’s purported and general use. ARB shall take reasonable care to ensure the correctness and quality of supply, but limit ARB’s responsibility to the replacement, repair, credit or return of defective or incorrect supply at ARB’s discretion and in terms of any applicable provisions of the CPA.
- ARB shall not be liable under any circumstances whatsoever for any loss or damages of any nature whatever, whether direct or indirect, consequential or otherwise, sustained as a result of any goods sold by ARB being defective or not conforming to the description thereof, or as a result of any other cause whatsoever, and ARB’s liability in respect of any goods sold by it shall be limited to that provided for in 9.4
- The customer acknowledges that-
- ARB is not the manufacturer of the goods;
- ARB does not warrant or represent that the goods are fit for any particular purpose (whether or not that particular purpose is known to ARB), and the goods shall be regarded as having been sold voetstoots, and without warranty against latent defects therein:
- no liability whatsoever shall arise on the part of ARB for any representation or warranty made, or alleged to have been made, at any time in respect of any goods sold by ARB to the customer.
- In respect of any goods sold as sub-standard or as reject or as seconds, the customer shall have no claim of any nature whatsoever against ARB, and ARB shall not be liable to the customer in any way whatever for any defect, whether latent or patent, in such goods.
- If any goods (other than goods of the type described in 3) are latently, patently, or otherwise defective and a claim lies against ARB in respect of such goods, ARB may at its option decide either to –
- replace the defective goods; or
- cancel the sale and reimburse the customer in respect of the purchase price paid by the customer for such goods. against return of the goods to ARB; or
- require the customer to accept the goods at a reduced purchase price to be agreed, provided that if the parties are unable to agree on the amount of the reduction that question shall be submitted to be resolved by an independent suitably qualified expert, agreed upon between ARB and the customer, and failing such agreement, appointed by the President for the time being of the Association of Arbitrators, and that expert’s decision (acting as expert and not as arbitrator) shall be final and binding upon ARB and the customer; or
- cede to the customer all its rights in and to any manufacturer’s warranty in respect of the defective goods to enable the customer to recover directly from the manufacturer, if the relevant warranty does not preclude ARB from ceding its rights to a third party, provided that ARB does not warrant that any claim under the relevant warranty will be met by the manufacturer and ARB shall not be liable to the customer if for any reason the manufacturer fails to pay any claim made
- Any decision of ARB in terms of 9.4 shall be notified to the customer in writing
- if so required by ARB the customer shall be obliged to re-deliver the defective goods to ARB at the customer’s own cost
- ARB shall not be liable under any circumstances whatever for any loss or damage of any nature whatever whether direct or indirect, consequential or otherwise, arising out of any contract with the customer and/or relating to any goods sold to the customer, ARB’s liability being limited to that provided for in 4. The customer accordingly indemnifies and holds ARB harmless against any claim that may be brought against ARB in consequence of any goods being defective and causing any damage whatsoever whether through accident, negligence, gross negligence, or any other cause.
ARB shall be entitled (subject to compliance with the provisions of the National Credit Act where such Act is applicable) without prejudice to any rights that it may have in terms of these Conditions or according to law:-
- to cancel any contract and/or any part thereof subsisting with the customer and to claim return of the goods sold
- to claim from the customer immediate payment of any monies due by the customer to ARB notwithstanding any earlier agreement for credit, whether same is due for payment or not, if:-
- the customer fails to pay on the due date for payment thereof any amount due to ARB under any contract; or
- any cheque, promissory note or bill of exchange given to ARB in respect of any indebtedness of the customer under any contract is dishonoured by non-payment; or
- the customer’s estate is provisionally or finally sequestrated or it is placed in provisional or final liquidation or under provisional or final judicial management; or
- the customer commits any act of insolvency in terms of Section 8 of the Insolvency Act; or
- the customer enters into any compromise with its creditors generally; or
- the customer fails to satisfy any default judgement granted against him within seven (7) days after date of judgement.
If the National Credit Act of application between ARB and the customer in respect of the transactions contemplated in these Conditions, the provisions of this clause shall not apply.
The customer does hereby irrevocably and in rem suam cede, pledge, assign, transfer and make over unto and in favour of ARB all of its right, title, interest, claim and demand in and to all claims, debts, book debts of whatsoever nature and description and however arising which the customer may now or at any time hereafter have against all and any persons, companies, corporations, firms, partnerships, associations, syndicates and other legal personae whomsoever (”the customer’s debtors”) without exception as a continuing covering security for the due payment of every
sum of money which may now or at any time hereafter be, or become owing by the customer to ARB from whatsoever cause or obligation howsoever arising which the customer may be or become bound to perform in favour of ARB.
- Should it transpire that the customer at any time entered into prior Deeds of Cession or otherwise disposed of any of the right, title and interest in and to any of the debts which will from time to time be subject to this Cession, then this Cession shall operate as a Cession of all the customer’s reversionary rights. Notwithstanding the terms of the aforegoing Cession the customer shall be entitled to institute action against any of its debtors provided that all sums of money which the customer shall be entitled to institute action against any of its debtors provided that all sums of money which the customer collects from its debtors shall be collected on ARB’s behalf provided further that ARB shall at all time be entitled to terminate the customer’s right to collect such monies/debts.
- The customer agrees that ARB shall be entitled at any time or times hereafter to give notice of this Cession to all or any of the customer’s debtors.
- The customer further agrees that ARB shall at any time be entitled to inspect any of the customer’s books or records and in addition shall be entitled to take possession of such books and records (of whatsoever nature) to give effect in terms of the Cession.
- It is agreed that set-off shall operate automatically as a matter of law at the moment reciprocal debts between ARB and the customer come into existence and independently of the will of the parties and it shall not be necessary for either ARB or the customer to specifically raise set-off. Upon the operation of an automatic set-off aforementioned, the debts shall be mutually extinguished to the extent of the lesser debt.
- In the event of the customer having an existing credit account/application and which account is in arrears and the customer subsequently purchases goods on a cash basis, then under this particular circumstance, ARB can appropriate and set off the cash payment received from the customer to the outstanding arrear account.
- . The set-off will only apply to arrear accounts that are undisputed and where the Customer has explicitly or impliedly admitted liability and has even made a part payment towards the arrear account.
ACCEPTANCE OF DELIVERY
Signature by the customer, or by any person purporting to be an employee or representative of the customer, or ARB’s delivery note shall be regarded as acceptance by the customer that the goods reflected in such delivery note have been properly and completely delivered.
CESSION BY ARB
ARB shall, at any time, in its sole discretion, be entitled to cede all or any of its rights in terms of this Agreement and Deed of Suretyship to any third party, without prior notice to the customer.
Any condonation of any breach of any of the provisions hereof of other acts or relaxation Indulgence or grace on the part of ARB shall not in any way operate as or be deemed to be a waiver by ARB of any rights under this Contract or be construed as a novation thereof.
CHANGE OF OWNERSHIP OF THE CUSTOMER’S BUSINESS
If at any time there is any change in ownership of the customer’s business, or should the customer be a company or close corporation, any change in shareholding or change of members interests, without the prior approval of ARB then all amounts then owing by the customer, whether due or not, will immediately be deemed to be due and payable by the customer to ARB, and in addition, ARB shall be entitled to exercise the rights accorded to it in terms of 6 and 10 which shall apply mutatis mutandis.
In the event of ARB instructing its attorney to recover money or goods from the customer, the customer shall be liable for all costs incurred by us in the recovery of any monies hereunder including collection charges, tracing agent’s fees and attorney and own client costs, whether incurred prior to or during the institution of legal proceedings, or if judgment has been granted, in connection with the satisfaction or enforcement of any such judgment, as well as our reasonable administration charges incurred in attempting to collect the debt prior to handover to our attorney.
INTERPRETATION AND JURISDICTION
- This contract shall be interpreted according to the laws of the Republic of South Africa
- Notwithstanding the amount which may at any time be owing the customer to ARB, the parties do hereby consent, in terms of Section 45 of the Magistrates Court Act No 32 of 1944 as amended to the jurisdiction of the Magistrates Court having jurisdiction for the determination of any action or proceedings otherwise beyond the jurisdiction of the said Court which may be brought by ARB against the customer arising out of any transaction between the parties it being recorded
that ARB shall be entitled, but not obliged, to bring any action or proceeding in the said Court.
- All notices by the one party to the other shall be given in writing by prepaid registered post, or delivery by hand or email. We may also serve notices, statements and correspondence on you by email and we shall use the email address given in your Application (“email domicilium”).
- to ARB at 10 Mack Road, Prospecton, Durban and our email domicilium at firstname.lastname@example.org
- to the customer at the trading address referred to in the Application for Credit Facilities which addresses the parties choose as their respective domicilia citandi et executandi.
- The parties shall be entitled to change the address as referred to in 19.1 from time to time provided that any address selected by either of them shall be situated in the Republic of South Africa and any such change shall only become effective upon receipt of notice in writing by the other party of such change.
- Either of us shall be entitled from time to time to vary our domicilium or email domicilium, which notice shall be given at least 10 (ten) calendar days before the change becomes effective.
- Any notice which:
(a) is posted by prepaid registered post to the other Party’s domicilium shall be presumed, unless the contrary is proved by the Party to whom it is addressed, to have been received by that Party on the seventh (7th) calendar day after the date of posting; or
(b) is transmitted by email to the other Party’s email domicilium shall be deemed to have been received by the Party to whom it is addressed on the date of transmission or, if the transmission is made out of normal business hours, on the first business day following after the date of transmission.
NO OTHER CONDITIONS BINDING
- ARB shall not be bound by any oral statements, recommendations, figures, advises, formulae, specifications, prices quoted, acceptances or representations unless they are in writing and signed on behalf of ARB by its duly authorised representative.
- All sales of goods by ARB are subject to these Conditions, and no other conditions shall be binding on the parties
notwithstanding that such conditions may be annexed to, contained in or incorporated by reference in, any documents
exchanged between ARB and the customer and purport to regulate the terms of any purchase by the customer.
- No variation or consensual cancellation of these Conditions, or any contract referred to in 2.4 shall be binding upon ARB unless it is in writing and signed by a duly authorised representative of ARB.
- Each paragraph and clause in this Agreement is separate and severable, the one from the other, notwithstanding the manner in which they may be linked together or grouped grammatically, and if any paragraph or clause is found to be defective or unenforceable or unlawful for any reason, the remaining paragraphs or clauses, as the case maybe, will nevertheless be and continue to be of full force and effect.
APPLICATION OF THE NCA
- If any of the provisions of the National Credit Act are applicable in relation to any transactions between ARB and the customer pursuant to these Conditions, then:-
- any provision of these Conditions which may be rendered unlawful by any applicable provisions of such Act shall be deemed to have been severed from these Conditions;
- these Conditions shall not exempt ARB from any liability which may not lawfully be excluded in terms of such Act;
- these Conditions shall not be construed as depriving the customer of any right that the customer may have in terms of any applicable provisions of such Act which may not lawfully be excluded.
Should the NCA apply to this Agreement, its application is limited in various respects. Your attention is drawn to the following general rights contained in the NCA for your protection which are briefly summarised as follows: –
- You have a right to apply for credit, however we have a right to refuse to enter into this credit agreement on reasonable commercial grounds consistent with our customary risk management and underwriting practices;
- You have a right to be given reasons if credit is refused or if a lower credit limit is offered than what was applied for;
- You must record all details properly and failure to do so will not prejudice our right to recover any amount under this Agreement.
APPLICATION OF THE CPA
- Should the CPA be applicable to this Agreement, nothing in this Agreement is intended to or must be understood to unlawfully restrict, limit or avoid your rights or our obligations under sections 54, 55, and 56 of the CPA, which are admitted only to the minimum possible extent. Unless the contrary is stated elsewhere in this Agreement, you shall have no rights in respect of quality of service, safe & good quality goods or implied warranty of quality beyond those explicitly stated in the aforementioned sections.
- A transaction (as defined in the CPA) between us and you may or may not fall under the provisions of the CPA depending upon whether certain values applicable to you (“Threshold Values”) are below a certain value at the time the transaction is entered into.
- The Threshold Values are your asset value or annual turnover (or such other measurement as may be dictated by the CPA as amended from time to time), and the value against which they are measured is as determined by the Minister of Trade and Industry by publication in the Government Gazette from time to time.
- Our duties under a particular order may vary depending upon whether the transaction in question is subject to the CPA, and we will act upon the information you give to us in this regard. Consequently:
- (a) you warrant that any statement made to us in respect of your Threshold Values is accurate
- (b) If you claim that all the Threshold Values are below the relevant value, or otherwise that the CPA applies to the transaction in question, we may at our instance require you to provide us with financial statements as proof thereof.
- (c) If you misstate the Threshold Values in such a way that we consider for a period that the transaction is subject to the CPA when it is not, all provisions of this Agreement that do not apply to transactions subject to the CPA shall retroactively apply to the transaction in question, and you shall be liable for any damage we sustain resulting from such misstatement.
- This Agreement contains terms and conditions which appear in similar text style to this clause and which:
- (a) May limit our risk or liability or a third party; and/or
- (b) May create risk or liability for you; and/or
- (c) May compel you to indemnify us or a third party; and/or
- (d) Serves as an acknowledgement, by you, of a fact.
- Your attention is drawn to these terms and conditions because they are important and should be carefully noted.
PROTECTION OF PERSONAL INFORMATION ACT 4 OF 2013 (“POPIA”):
There has been compliance with the provisions of POPIA by ARB. In particular, the information required and collected by ARB is collected for the purposes of the customer and ARB entering into a binding agreement relating to credit facilities and a suretyship. ARB does not sell or transmit customer information to third parties for advertising or other purposes unless consent is explicitly obtained from the customer. Any information or emails received by persons are stored at secured third party servers (in accordance with generally accepted standards). Physical agreements and documentation are kept on site at the company’s secured premises in accordance with appropriate safety protocols. The manner in which your data is processed is lawful, reasonable and minimalistic. Processing may be necessary for the purposes of pursuing the legitimate interests of the company or a third party to whom the information is supplied. Records of personal information will not be stored for longer than is necessary for the purposes which the data was collected.