Terms and Conditions "A"

The BUYER has made an application for credit with the SELLER based on the information provided by the BUYER to the SELLER set out in its Credit Application Form, which application has been accepted.

The SELLER agrees to sell to the BUYER certain optometric frames, sunglasses and related products by means of extending credit to the BUYER. In consideration thereof the BUYER accepts the following terms and conditions:-

1. CREDIT TERMS

  • 1.1.  The SELLER shall notify the BUYER in writing once a credit facility has been approved and the applicable terms of payment that have been granted to the BUYER (“Terms of Payment”).

  • 1.2.  The BUYER agrees that the amount reflected in a Tax Invoice issued by the SELLER shall be due and payable as Cash on Delivery unless the Terms of Payment differ at the time when the goods are delivered.

  • 1.3.  Settlement is effected only on receipt of cash or payment by way of credit card and shall be made to the SELLER free of exchange and without any deductions or set off. Any credit facilities granted to the BUYER by the SELLER are entirely at the discretion of the SELLER and may be withdrawn at any time.

2. TERMS OF PAYMENT AND SPECIAL CONDITIONS

  • 2.1.  See Annexure “B”, which terms may be amended from time to time by the SELLER on notice in writing to the BUYER.

  • 2.2.  Where the purchase price in respect of goods purchased is not paid in terms of the Payment Terms as set out in Annexure “B”, the purchase price will bear interest at the rate set out in clause 4 below.

  1. DEFAULT IN PAYMENT

    In the event of the BUYER defaulting in making payment of any amount that has become due and owing, then the full balance outstanding (whether due or not) will immediately become due and payable without notice to the BUYER. Further, the SELLER shall be entitled to place the BUYER on “stop order” without any notice to the BUYER, notwithstanding that the BUYER may have placed an order with the SELLER.

  2. INTEREST ON OVERDUE ACCOUNTS

    The SELLER shall be entitled to charge the BUYER interest at a rate of 5% (five percent) above the prime rate (being the prime bank overdraft rate of interest charged from time to time by the SELLER’s banking institution on unsecured overdrawn current accounts of its most favoured corporate customers) calculated from due date to date of final payment.

  3. DELIVERY

  • 5.1.  The BUYER agrees that the signature of any employee of the BUYER on the SELLER’s official delivery note of any authorised independent carrier will constitute valid delivery of the goods purchased.

  • 5.2.  The SELLER shall endeavour to deliver the goods within the time set out in the respective invoice. Should the SELLER be unable to deliver the goods within the aforementioned time, the SELLER undertakes to deliver the goods as soon as reasonably possible thereafter.

  • 5.3.  Whilst the SELLER endeavours to ensure that goods are delivered timeously, it shall not be responsible for any delays in the delivery thereof, and the BUYER shall not be entitled to refuse acceptance of such late deliveries or withhold payment.

 

6. RESERVATION OF OWNERSHIP

  • 6.1.  The risk in and to the goods shall pass from the SELLER to the BUYER immediately upon delivery of the goods, however the SELLER shall retain full ownership and title of the goods until the purchase price has been settled in full.

  • 6.2.  The SELLER shall in its sole discretion, without notice to the BUYER, be entitled to take possession of any such goods which have not been paid for and in respect of which payment is overdue, in which event the BUYER shall be entitled to a credit in respect of the goods so returned being the price at which the goods are sold or the value thereof as determined by the SELLER.

  • 6.3.  The BUYER hereby waives any right it may have for a spoliation order against the SELLER in the event that the SELLER takes possession of any goods.

  • 6.4.  The BUYER gives the SELLER the right to notify his/her/its landlord of the SELLER’s ownership of goods at the premises occupied by the BUYER.

7. ORDERS

  • 7.1.  In the event of any order being given to the SELLER on an order form reflecting the BUYER’s name as the entity from which the order emanates, such order shall be deemed to have emanated from the BUYER, notwithstanding the fact that such order may have been given or signed by a person not authorised by the BUYER to determine that the goods ordered are suitable for the purposes of intended use. The BUYER shall be estopped from raising any such defence whatsoever.

  • 7.2.  Any order placed that is not currently in stock will be deemed to be a “back order”. All back orders are binding on the BUYER. Should the BUYER cancel the back order, the order cancelled:-

  • 7.2.1.  Prior to being shipped from the international supplier will incur no cancellation fee; or

  • 7.2.2.  After being shipped from the international supplier will incur a cancellation fee of 60%

    (sixty percent) of the selling price.

  1. PAYMENT TO THE SELLER

    In the event of any payments being transferred to the incorrect back account, the BUYER shall still be liable to the SELLER for payment. Should the SELLER at any time advise the BUYER in writing of any change to the SELLER’s bank account details, the BUYER shall confirm with the SELLER’s Accounting Department before effecting further payments, provided however that nothing contained herein shall be interpreted as obliging the SELLER to afford the BUYER any such indulgence to effect payment after the due date.

  2. WARRANTIES AND REPAIRS

  • 9.1.  The BUYER warrants that the information given herein is true and correct.

  • 9.2.  The BUYER warrants that is has never been liquidated and/or is in the process of being

    liquidated.

  • 9.3.  In the event that the BUYER is a sole trader, the BUYER warrants that it’s estate has never

    been sequestrated (provisionally or finally) and/or is in the process of being sequestrated.

  • 9.4.  The BUYER warrants that it has never been blacklisted, that there are no current legal

    proceedings against it, and that there are no existing judgments against it.

  • 9.5.  In the event that the BUYER is a sole trader, the BUYER warrants that it has never been blacklisted, that there are no current legal proceedings against it, and that there are no existing judgments against it.

  • 9.6.  The BUYER warrants that it is currently not under Business Rescue Proceedings and/or has

    any intention to institute such proceedings and is not aware of any third party which has either instituted such proceedings or intends instituting such proceedings.

 

 

  • 9.7.  New goods are guaranteed according to the SELLER’s specific warranties. Where indicated, certain goods may be sold to the BUYER on the basis of the SELLER not accepting any responsibility for latent defects in which case any product warrantees are specifically excluded.

  • 9.8.  Should a product supplied to the BUYER by the SELLER be faulty or require return for credit and where a warranty is applicable, the BUYER shall contact the SELLER within 3 (threes) days from date of delivery of the goods and arrange for the goods to be returned to the SELLER. The BUYER cannot return the goods without the prior written consent of the SELLER, which consent shall not be unreasonably withheld. Such consent may be withheld at the sole discretion of the SELLER if the goods have been in the BUYER’s possession for more than 3 (three) days from date of delivery.

  • 9.9.  The Surety hereto warrants that he/she has never been blacklisted, that there are no current legal proceedings against him/her and that there are no existing judgments against him/her.

  • 9.10.  The Surety hereto warrants that there is a duty upon him/her to disclose any further personal information pertaining to the Surety which may adversely affect the SELLER’s decision to sell the goods to the BUYER on credit, and by appending his/her signature to this agreement, acknowledges that he/she has disclosed all information which may adversely affect the SELLER giving credit to the BUYER.

  • 9.11.  The BUYER and Surety hereby undertake to immediately notify the SELLER of any changes to the warranties made herein, should they occur in the future.

  • 9.12.  The BUYER warrants that there is a duty upon it to disclose any further information which may adversely affect this application to the SELLER, and by appending its signature to this agreement, acknowledges that it has disclosed all information which may adversely affect this application.

  • 9.13.  The BUYER hereto understands that the personal information given herein is to be used by the SELLER for the purposes of assessing its credit worthiness. The BUYER confirms that the information given by it is accurate and complete. The BUYER further agrees to update the information supplied, as and when necessary, in order to ensure the accuracy of the above information, failing which the SELLER will not be liable for any inaccuracies.

  • 9.14.  No warranties, representations or guarantees have been made by the SELLER or on its behalf which may have induced the BUYER and/or the surety/ies to sign this document.

  • 9.15.  The warranties and guarantees shall become immediately null and void should any of the goods be tampered with. Damage caused by other incidents beyond the control of the SELLER are not covered in any warranties.

  • 9.16.  Should the SELLER find no fault with the returned goods, they will be returned to the BUYER.

  • 9.17.  Where goods are returned for repair, the BUYER shall be required to accept a cost estimate prior to any repair work being carried out.

  • 9.18.  The BUYER hereby accepts and undertakes irrevocably to be bound by the Warranties made herein.

10. RESPONSIBILITY FOR LOSSES, DAMAGES OR DELAYS

  • 10.1.  The SELLER shall not be responsible for losses, damages or delays caused by or arising from force majeure, unavoidable accidents of any kind, riots, lockouts, cessation of labour, transport delays, shortened hours of labour, insurrection, war, the imposition of any trade boycotts or sanctions of trade restrictions by any government, authority, company or organisation or person(s), whether within the Republic of South Africa or anywhere else, or any other cause or contingency whatsoever beyond the control of the SELLER.

  • 10.2.  The SELLER shall not be responsible for, or be bound by any representation made by any employee unless reduced to writing and signed by an authorised representative of the SELLER.

  • 10.3.  The SELLER’s liability is strictly limited to replacing defective goods. This liability is waived in the case of force majeure, incorrect use, negligence or incorrect storage of the goods supplied.

 

 

11. BREACH

 

11.1. Should the BUYER breach any of its obligations in terms hereof and persist in such breach for a period of 10 (ten) days after written notice will have been received from the SELLER, then the SELLER shall be entitled without prejudice to any rights which it may have in terms hereof or at law, to:-

  • 11.1.1.  specific performance and damages; and/or

  • 11.1.2.  cancel this Agreement and claim damages; and/or

  • 11.1.3.  cede all of its rights to Credit Guarantee.

11.2. Should the SELLER breach any of its obligations in terms hereof, then in such event the provisions of clauses 11.1–11.1.2 shall apply mutatis mutandis.

12. CANCELLATION

  • 12.1.  The terms and conditions herein shall continue indefinitely until the Agreement has been cancelled in writing by either party giving 1 (one) calendar months’ notice in writing to the other party.

  • 12.2.  The BUYER shall only be entitled to cancel this Agreement, provided that all its existing obligations in terms of this Agreement have been discharged.

13. DOMICILIUM

  • 13.1.  The parties choose as their domicilium citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the addresses set out in the Credit Application Form to which this Agreement is attached.

  • 13.2.  Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing but it shall be competent to give notice by e-mail.

  • 13.3.  The BUYER shall be entitled to alter his/her/its domicilium to an address in South Africa and undertakes to notify the SELLER in writing within 7 (seven) days of any change of address.

  1. CHANGE OF OWNERSHIP

    The BUYER undertakes to notify the SELLER in writing within 20 (twenty) days of any change in ownership of the BUYER’s business, or should the BUYER be a company, of its share transactions whereby the majority shareholding is affected, and failing such notice, the entire balance owing, whether due or not, will immediately be deemed due and payable by the BUYER. The BUYER further acknowledges that immediately upon any change of ownership in the BUYER, any outstanding amount whether due or not shall be deemed to be forthwith payable by the BUYER to the SELLER.

  2. NOTICES

15.1. Any notice to be given by either party shall be in writing and shall:-

  • 15.1.1.  if delivered by hand be deemed to have been duly received on the day of actual delivery; and

  • 15.1.2.  if transmitted by email be deemed to have been received at the actual time of sending, unless the contrary is proved, and be adequate written notice or communication to such party.

16. CONSENT TO JURISDICTION

The parties hereby agree that the SELLER shall be entitled at its option to institute any legal proceedings which may arise out of or in connection with this Agreement, in any Magistrate’s Court having jurisdiction in respect of this matter, notwithstanding the fact that the claim or value of the matter in dispute might exceed the jurisdiction of such Magistrate’s Court in respect of the cause of action. It shall nevertheless be entirely within the discretion of the SELLER whether to proceed against the BUYER in such Magistrate’s Court or to do so in any other court having jurisdiction.

17.  COSTS

 

 

 

Should the SELLER institute proceedings against the BUYER and/or SURETY pursuant to this agreement (including Suretyship) and/or the breach thereof, then, without prejudice to any other rights of the SELLER, the SELLER shall be entitled to recover from the BUYER all legal costs incurred, including all costs incurred by the SELLER as between attorney and own client, including collection commission payable, tracing charges, Counsel fees, disbursements and interest.

  1. CERTIFICATE OF INDEBTEDNESS

    A certificate of indebtedness signed by any director of the SELLER, whose appointment need not be proved, reflecting any amount owing by the BUYER and/or Surety, shall be prima facie proof of the indebtedness therein stated for the purpose of any action (whether by way of provisional sentence or otherwise), or for any purpose whatsoever where the amount of such claim is required to be established and it shall rest with the BUYER to prove that such amount is not owing and/or due.

  2. NON-WAIVER OF RIGHTS

    Any condonation of any breach of any of the provisions hereof or other act or relaxation, indulgence or grace on the part of the SELLER shall not in any way operate as or be deemed to be a waiver by the SELLER of any rights under this Agreement, or be construed as a novation thereof.

  3. CESSION

    The SELLER shall be entitled to cede or assign any rights and obligations under this agreement to a third party or third parties without prior Notice to the BUYER and/or Surety.

  4. SEVERABILITY

    Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall be ineffective within that jurisdiction to the extent of such prohibition or unenforceability and shall, within that jurisdiction, be treated as pro non scripto and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

  5. WHOLE AGREEMENT / NO AMENDMENT

    The Credit Application Form, together with this Agreement and any annexures embodies and sets forth the entire agreement between the parties and supercedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement. Any variations, cancellations or additions to this Agreement shall not be of any force or effect unless reduced to writing and signed by the parties or their duly authorised signatories. The Agreement shall be governed by the laws of the Republic of South Africa. The BUYER and the surety(ies), by their signatures hereunder confirm that the information submitted in the Credit Application Form is true and correct in all respects and that they are entirely familiar with the terms and conditions contained herein.

The BUYER acknowledges having read and understood the terms and conditions herein.