NUTAPE CC (hereinafter referred to as “NUTAPE”)
GENERAL TERMS AND CONDITIONS IN RESPECT OF THE SUPPLY OF GOODS
1. In these terms and conditions –
1.1. the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings -
1.1.1. “accepted order” means a written confirmation sent by NUTAPE to the customer as contemplated in clause 4.3 setting out,inter alia, the details in respect of the goods to be supplied by NUTAPE to the customer, which accepted order shall be deemed to be incorporated in and form part of these terms and conditions;
1.1.2. “the customer” means the entity defined as the customer in the accepted order, which customer requires the goods and goods to be supplied by NUTAPE as set out in the accepted order and in accordance with the provisions of these terms and conditions;
1.1.3. “goods” means the self-adhesive tape products and/ or any other products and/or services agreed in writing between the customer and NUTAPE, to be supplied by NUTAPE to the customer in accordance with the provisions of clause 4, as set out in the accepted order;
1.1.4. “invoice” means an invoice issued by NUTAPE in terms of clause 8.1 which shall stipulate the price at which the relevant goods are supplied to the customer, which invoice shall be deemed to be incorporated in and form part of these terms and conditions;
1.1.5. “parties” means NUTAPE and the customer and “party” means any one of them;
1.1.6. “prices” means the purchase prices at which the goods shall be purchased by the customer and supplied by NUTAPE in accordance with the provisions of clause 7 and as set out in the relevant invoice;
1.1.7. “terms and conditions” means these terms and conditions;
1.1.8. “VAT” means Value-Added Tax in terms of the Value-Added Tax Act, 1991 (Act No. 89 of 1991);
1.2. the headings in these terms and conditions are for reference purposes only and shall not affect interpretation;
1.3. unless inconsistent with the context, an expression which denotes:-
1.3.1. any one gender includes the other gender;
1.3.2. a natural person includes a juristic or an artificial person and vice versa;
1.3.3. the singular includes the plural and vice versa.
2.1. NUTAPE conducts business as supplier of the goods.
2.2. These terms and conditions record the terms and conditions relating to the supply and delivery of the goods by NUTAPE and the purchase of the goods by the customer, from NUTAPE.
3. INCORPORATION OF ACCEPTED ORDER
The accepted order shall be deemed to be incorporated in and form part of these terms and conditions.
4. ORDERS FOR PRODUCTS
4.1. The customer shall, from time to time, place orders, in writing or verbally with NUTAPE for the goods, whether by telefacsimile transmission, electronic mail, telephonically or by way of delivery of a written order to NUTAPE.
4.2. Each order placed by the customer on NUTAPE shall state the type and quantity of the goods required by the customer, and the place of delivery of the goods ordered by the customer which delivery address shall be in the Republic of South Africa or in Africa (“chosen address”).
4.3. NUTAPE shall within three business days of receipt of any such order, either accept (by way of an accepted order) or reject the order in writing and transmit a copy of such accepted or rejected order to the customer. The order may be accepted by NUTAPE subject to any variation or modification required by NUTAPE, having regard to, inter alia, stock levels.
4.4. No order shall be binding on NUTAPE unless accepted in writing by NUTAPE in terms of this clause 4.
4.5. Within 2 (two) business days of receipt by the customer of any accepted order from NUTAPE, the customer shall be entitled to reject the order by notifying NUTAPE in writing(which shall include via electronic mail or facsimile). If the customer does not reject the order as aforesaid within the period of time stipulated, it shall be deemed to have accepted the order as well as these terms and conditions and shall abide by the relevant order and these terms and conditions.
4.6. THE CUSTOMER SHALL NOT BE ENTITLED FOR ANY REASON WHATSOEVER TO CANCEL ANY ORDER ONCE ANACCEPTED ORDER HAS BEEN ACCEPTED OR DEEMED TO HAVE BEEN ACCEPTED IN TERMS OF CLAUSES 4.4 AND 4.5, UNLESS AGREED TO IN WRITING BY A DESIGNATED MANAGER OF NUTAPE WHO HAS THE REQUISITE AUTHORITY
TO DO SO.
Updating of these Terms and Conditions: Provider reserves the right to change, modify, add to or remove from portions or the whole of these Terms and Conditions from time to time. Changes to these Terms and Conditions will become effective upon such changes being posted to this Website. It is the User’s obligation to periodically check these Terms and Conditions at the Website for changes or updates. The User’s continued use of this Website following the posting of changes or updates will be considered notice of the User’s acceptance to abide by and be bound by these Terms and Conditions, including such changes or updates.
5. DELIVERY OF GOODS
5.1. Each accepted order shall be delivered to the chosen address and the delivery costs (if applicable) shall be stipulated in the relevant invoice.
5.2. NUTAPE shall make every effort to effect delivery timeously, but late delivery shall not render NUTAPE liable to any claims for damages of whatsoever nature, nor shall late delivery constitute a ground for cancellation, or repudiation of the relevant order.
5.3. Notwithstanding delivery of the goods to the customer, ownership in and to the goods shall at all times remain vested in NUTAPE until such time as the purchase price in respect of such goods has been paid for by the customer, in full, where after ownership in and to the goods shall pass to the customer.
5.4. Notwithstanding the provisions of clause 5.2, all risk in and to the goods shall pass to the customer upon the date of delivery thereof.
6.1. NUTAPE shall not be liable to the customer for indirect or consequential loss or damage of any kind howsoever arising.
6.2. The good are sold to the customer without any representations or warranties of any nature whatsoever, whether express or implied. Any warranties implied by statute, common law, or otherwise, are excluded, and no representations are made or are binding on NUTAPE unless reduced to writing and signed by NUTAPE.
7. PRICES AND CHARGES FOR GOODS
7.1. NUTAPE shall supply the goods to the customer at the prices more fully set out in the invoice and based on the quotation provided by NUTAPE to the customer, which prices are listed as exclusive of VAT. All prices are strictly net and no additional discounts shall apply. Save for manifest errors determined by NUTAPE in its discretion, the prices reflected in the invoices are binding on the
7.2. Quotations are based upon ruling prices as at the date thereof, and are subject to increase in accordance with any increase in respect of the cost of materials, customs duties, road, rail or airfreight rates, or due to any increase in rates of wages, or due to variations in foreign currency rates of exchange or in any other increase in costs of materials, commodities, or services
beyond the control of NUTAPE. Accordingly, all price quotations given verbally or telephonically or in writing by NUTAPE shall not be binding on NUTAPE unless set out in the relevant invoice.
7.3. The price at which the goods are supplied shall not exceed the prices stipulated in the invoice.
8. PAYMENT FOR GOODS
8.1. NUTAPE shall provide the customer with an appropriate tax invoice in respect of each accepted order in respect of the goods upon delivery of the relevant order.
8.2. NUTAPE shall furnish the customer with a statement of account at the end of the month in which the relevant order is delivered.
8.3. Payment for the goods shall be made by the customer to NUTAPE by electronic funds transfer, cash or bank guaranteed cheque,without set-off or deduction of any nature whatsoever, deposited directly into NUTAPE’s nominated bank account as stipulated on each tax invoice, within 30 days of the date of the statement referred to in clause 8.2.
8.4. A certificate signed by a Director of NUTAPE shall be prima facie proof in regard to any amounts owing by the customer to NUTAPE.
8.5. Any amount due by the customer to NUTAPE which is not paid on the due date thereof shall carry interest at the prime rate plus 2% from the due date to date of payment thereof. For the purposes of this clause, “prime rate” means the publicly quoted basic rate of interest per annum (as certified by any general manager of First National Bank Limited whose appointment and authority it shall not be necessary to prove) at which First National Bank Limited lends on overdraft from time to time, and
determined on a 365 day year factor irrespective of whether the year is a leap year or not, compounded monthly in arrears.
9. RETURNS IN RESPECT OF THE GOODS
Any defective goods shall forthwith be reported in writing to NUTAPE by no later than 7 days of delivery of the relevant order to the customer. NUTAPE shall inspect such goods at the customer’s premises to determine whether the goods are defective. The customer shall allow NUTAPE access to its premises for the purposes of inspecting the goods. Should NUTAPE determine in its sole and absolute discretion that the goods are found to be defective, NUTAPE shall either replace such goods or refund the purchase price in respect of the defective goods to the customer (at NUTAPE sole discretion). If no written notification is received by NUTAPE, within the aforesaid seven (7) days, the customershall be deemed to have accepted the order and the goods in a proper and complete condition.
10.1. NEITHER NUTAPE NOR ANY OF ITS SHAREHOLDERS, DIRECTORS, AGENTS OR EMPLOYEES (“INDEMNIFIED PARTIES”) SHALL BE LIABLE FOR, AND THE CUSTOMER SHALL NOT HAVE ANY CLAIM FOR:
10.1.1. PERSONAL INJURY TO OR THE DEATH OF ANY PERSON OR THE LOSS OR DAMAGE TO ANY PROPERTY ARISING FROM THE SUPPLY OF THE GOODS AND/OR THE GOODS IN TERMS OF THESE TERMS AND CONDITIONS OR BY ANY THIRD PARTY OF WHATSOEVER NATURE, OR HOWSOEVER ARISING OR CAUSED;
10.1.2. ANY FAILURE OR SUSPENSION OF, OR ANY INTERRUPTION IN, THE SUPPLY OF THE GOODS;
10.1.3. ANY LOSS WHICH THE CUSTOMER MAY SUFFER AS A RESULT OF OR IN RELATION TO THE GOODS;
10.1.4. ANY LOSS ARISING FROM FORCE MAJEURE AS CONTEMPLATED IN CLAUSE 13 OR ANY OTHER CAUSE, EITHER WHOLLY OR PARTLY BEYOND THE CONTROL OF THE INDEMNIFIED PARTIES OR ARISING OUT OF ANY ACT OR OMISSION BY ANY OTHER PARTY.
10.2. FOR THE PURPOSES OF CLAUSE 10.1, “PERSONAL INJURY OR INJURY TO OR THE DEATH OF ANY PERSON OR THE LOSS OF OR DAMAGE TO ANY PROPERTY” SHALL INCLUDE LOSS OF PROFITS, CONSEQUENTIAL DAMAGES OR DAMAGE TO STOCK IN TRADE BY RAIN, HAIL, LIGHTNING OR FIRE OR BY REASON OF RIOTS, STRIKES, STATE ENEMIES OR AS A RESULT OF THEFT OR BURGLARY, WITHOUT OR WITH FORCEFUL ENTRY OR THROUGH ANY OTHER CAUSE WHATSOEVER.
10.3. THE CUSTOMER:
10.3.1. HEREBY INDEMNIFIES THE INDEMNIFIED PARTIES AGAINST ANY CLAIM OF WHATEVER NATURE WHICH MAY BE MADE AGAINST ANY OF THEM ARISING OUT OF ANY OF THE FOREGOING OCCURRENCES;
10.3.2. SHALL NOT BE ENTITLED TO WITHHOLD OR DEFER ANY AMOUNTS DUE IN TERMS OF THESE TERMS AND CONDITIONS FOR ANY REASON WHATSOEVER;
10.3.3. SHALL, UNDER NO CIRCUMSTANCES, HAVE ANY CLAIM AGAINST THE INDEMNIFIED PARTIES FOR CONSEQUENTIAL LOSS HOWSOEVER CAUSED.
Notwithstanding any other provision of these terms and conditions and/or the accepted order, NUTAPE shall, at its election, have the right,
with immediate effect:
11.1. to terminate the supply, delivery and sale of the goods to the customer;
11.2. to terminate these terms and conditions summarily and/or claim damages;
11.3. to claim immediate specific performance from the customer of all its obligations in terms of these terms and conditions;
11.4. claim the entire purchase price in respect of the goods as set out in the accepted order and NUTAPE shall be entitled to proceed for the immediate recovery thereof without prior notice to the customer,upon the occurrence of any of the following events:
11.4.1. if the customer commits a material breach of any of the provisions of these terms and conditions and fails to remedy such breach within 7 days after receiving written notice from NUTAPE requiring the customer to remedy such breach; or
11.4.2. if the customer compromises or attempts to compromise with its creditors; or
11.4.3. the placing of the customer under a winding-up order, liquidation, business rescue or judicial management or similar disability whether provisional or final, voluntarily or compulsorily; or
11.4.4. the customer allowing any default judgement to be entered against it and fails within 21 days of becoming aware of such judgement:
220.127.116.11. to satisfy same; or
18.104.22.168. to apply for it to be set aside, and such judgement not subsequently being set aside within a reasonable time; or
11.4.5. the customer fails to satisfy any other final judgement entered against it within 30 days after the date on which it becomes aware of such judgment; or
11.4.6. the customer commits an act of insolvency within
12. EFFECTS OF TERMINATION
12.1. In the event NUTAPE exercising its election:
12.1.1. in accordance with the provisions of clauses 11.3 and/or 11.4, then all outstanding amounts due to NUTAPE by the customer shall immediately become due and payable by the customer to NUTAPE and the customer shall pay to the NUTAPE all amounts due by it in terms of these terms and conditions, whether or not such amounts were then due and payable.
12.1.2. in accordance with the provisions of clause 11.1 and/or 11.2, then:
22.214.171.124. the customer shall immediately pay to NUTAPE all amounts due by it in terms of the supply of the goods by NUTAPE to the customer in terms of clause 4, whether or not such amounts were then due and payable; and
126.96.36.199. the parties shall immediately cease and refrain thereafter from exercising any of their responsibilities in respect of the goods under these terms and conditions, provided that NUTAPE shall be entitled and the customer shall assist NUTAPE to complete any orders received prior to such termination.
12.2. The customer shall not be released from any debt or liability under these terms and conditions which exists at the time of termination. Likewise, any termination hereof shall not affect the rights of NUTAPE to any moneys otherwise due or to become due under these terms and conditions.
13. FORCE MAJEURE
13.1. The term "force majeure" shall, in these terms and conditions, mean all unforeseen events which-
13.1.1. prevent or retard the execution of any of its obligations by any party under these terms and conditions without that party being able to remedy or remove such events;
13.1.2. have not been brought about by the fault of the party which relies thereon; and
13.1.3. are referred to in clause 13.2.
13.2. Force majeure shall mean any material event beyond the control of the party claiming the occurrence of force majeure-
13.2.1. whose occurrence could not have reasonably been foreseen at the date of acceptance of the relevant order by NUTAPE in terms of an accepted order; and
13.2.2. which, despite the exercise of diligent efforts, such party was unable to prevent, limit or minimise, including, but not limited to, war (declared or not), revolution, riot, strikes (except strike by or affecting employees of either party which strikes are not part of or directly related to any more wide spread or general strike or other industrial action), insurrection, civil commotion, invasion, armed conflict, hostile action of foreign enemy, acts of terrorism, sabotage, radiation, or chemical contamination, acts of God, plague, serious epidemic, official declared state of emergency,
embargoes, sanctions, non-availability of raw materials or transport facilities, restrictions or sanctions imposed by any government or governmental authority (including the United Nations Organisations), or by force majeure of any description whether or not of the specific nature indicated above.
13.3. Subject to the terms hereof, NUTAPE shall not be responsible or liable for any delay or non-performance of its obligations under these terms and conditions directly caused or resulting from force majeure.
13.4. NUTAPE shall not be entitled to rely on force majeure unless it has given the customer written notice of the existence of such force majeure forthwith but not later than twenty days of its existence first coming to NUTAPE's notice.
13.5. ONCE NUTAPE IS AFFECTED BY FORCE MAJEURE, AND IT HAS GIVEN THE CUSTOMER NOTICE THEREOF IN TERMS OF CLAUSE 13.4-
13.5.1. ALL PERFORMANCE TIME LIMITS SET OUT IN THESE TERMS AND CONDITIONS FOR COMPLIANCE BY NUTAPE OF ITS OBLIGATIONS HEREUNDER, SHALL BE EXTENDED FOR SUCH PERIOD AS SUCH FORCE MAJEURE AFFECTS NUTAPE; and
13.5.2. NUTAPE shall use its reasonable endeavours to obviate and remove such force majeure in the shortest practical time and shall not be excused from or be entitled to refrain from the performance of such obligations hereunder as may remain unaffected by the force majeure;
13.5.3. if and when the force majeure applicable terminates, NUTAPE shall as soon as is practicably possible, proceed with the performance of its obligations in terms hereof and neither party shall be liable to the other for losses suffered as a result of such force majeure.
14.1. These terms and conditions shall be subject to and interpreted in accordance with the laws of the Republic of South Africa.
14.2. These terms and conditions and the accepted order contain the entire agreement between the parties in regard to the subject matter hereof and supersedes and negates all prior agreements.
14.3. No extension of time or waiver or relaxation of these terms and conditions shall be valid and binding unless recorded in a written document signed by the party granting such extension, waiver or relaxation. Any such extension, waiver or relaxation which is so given or made shall be strictly construed as relating only to the matter in respect whereof it was made or given.
14.4. No variation, modification or consensual cancellation of these terms and conditions shall be of any force or effect unless reduced to writing and signed by the parties.
14.5. All legal costs incurred by NUTAPE in consequence of any default of the provisions of this agreement by the customer shall be payable on demand by the customer on the scale as between attorney and own client and shall include the costs incurred by NUTAPE in an endeavour to enforce its rights prior to the institution of legal proceedings and the costs incurred in connection with
the satisfaction or enforcement of any judgement awarded in favour NUTAPE in relation to its rights in terms of or arising out of these terms and conditions.
14.6. NUTAPE shall at any time be entitled to cede all or any of its rights against the customer to any third party without notice to the customer.
14.7. The customer hereby consents, in terms of Section 45(i) of the Magistrates Court Act 32 of 1944 (as amended) in respect of
any proceedings which may be instituted against it, by or arising out of, or in connection with this agreement, to the jurisdiction of any Magistrate’s Court which at the time of such proceedings has jurisdiction over it in terms of Section 28 (1) of the Magistrate’s Court Act.
14.8. The customer further agrees that NUTAPE shall, in its sole discretion, be entitled to disregard the afore going consent to jurisdiction and institute any proceedings arising out of, or in connection with this agreement in any division of the High Court of South Africa exercising jurisdiction.