1.1 In this schedule, unless clearly inconsistent with or otherwise indicated by the context: –
1.1.1 “the Company” means Cucina Milano (Pty) Ltd Registration Number 2015/052163/07, a private company duly registered and incorporated according to the company laws of the Republic of South Africa, including its agent/s, authorised representative/s, associate/s and affiliate/s;
1.1.2 “the Company IP” means any copyright and all other intellectual property rights whatsoever in all quotations, proposals, drawings, plans and documents furnished products manufactured by the Company in or in relation to the sale of any such products or provision of any services and any materials developed by the Company in providing the services;
1.1.3 “the Customer” means any person with whom the Company concludes an agreement for the sale of products and/or the provision of services and shall include such person’s agent or authorised representative;
1.1.4 “the parties” means the Company and the Customer, collectively, and “the party” shall mean either of them as the context requires;
1.1.5 “products” means any product/s which forms the subject matter of an agreement or quotation for the sale thereof;
1.1.6 “Proprietary Products” means any products branded with the name and/or trademarks of the manufacturer (other than the Company) irrespective of who the manufacturer may be;
1.1.7 “quotation” means any quotation given, or offer made by the Company for or in relation to the sale of products and/or the provision of services;
1.1.8 “the quoted price” means any price quoted or offered by the Company to the Customer in an agreement or quotation;
1.1.9 “services” means any service/s which forms the subject matter of an agreement or quotation for the provision thereof.
1.2 The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording succeeding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s.
1.3 Any reference to the singular includes the plural and vice versa.
1.4 Any reference to natural persons includes legal persons and vice versa.
1.5 Any reference to a gender includes the other genders.
2.1 The terms and conditions of contract provided in this schedule shall apply as between the Company and the Customer and to any quotation in relation to the sale of any products and/or provision of services.
2.2 These terms and conditions shall apply to all transactions including future transactions, entered into or to be entered into between the parties for the sale of products and/or provision of services including sales pursuant to orders by telephone or fax or e-mail or orders placed with the Company, or by the Customer, and shall supersede any and all terms and conditions specified by the Customer or contained in any of the Customer’s documentation or orders. Any and all alterations or amendments to these terms and conditions, in order to be valid, must be in writing and signed by an authorised representative of both the Company and the Customer.
2.3 Contracts for the sale of products and/or the provision of any services shall only become binding upon acceptance in writing by the Company of an order placed by the Customer or upon written acceptance by the Customer of the Company’s written quotation. Subject to changes and adjustments provided herein, the Company’s prices and charges shall be determined from such contracts, constituted as aforesaid. Unless otherwise expressly stated, all prices and charges are inclusive of VAT but exclude delivery charges.
3.1 All quotations given by the Company shall be valid for 7 (seven) days unless otherwise specified in such quotation. All quotations are based upon duties, levies, surcharges and taxes in effect as of the date of quotation and shall be automatically adjusted to take into account any increases therein.
3.2 Orders or quotations, after acceptance, may not be cancelled by the Customer in whole or in part and may not be varied by the Customer in any manner whatsoever, unless agreed to by the Company in writing. The Company shall not be obliged to agree to any such cancellation or variation. In the event that the Company agrees to such cancellation, the Customer shall be liable to pay to the Company a cancellation (or variation) fee in lieu of the wasted costs incurred by the Company in commissioning the work. The Company will be entitled to retain any amounts already paid by the Customer and to set-off such amount against the wasted costs occasioned by the Customer’s cancellation (or variation) of the order. The Customer shall be passed a credit for all amounts paid to the Company in excess of the cancellation (or variation) fee and shall be liable for any shortfall.
4.1 The Company reserves the right to deliver any products ordered as and when such products are available for delivery. Time is not of the essence for the delivery of any product and any specified delivery dates are estimates only. Without limitation to the a foregoing, the Company shall not be liable to the Customer for any indirect, incidental, special or consequential damage or losses (whether foreseeable or unforeseeable) of any kind, including loss of profits and loss of goodwill, occasioned by any failure to comply with specified delivery dates and may extend such delivery dates in the event of delay or interruption of the supply of any products or any components thereof. The Company shall be entitled to execute delivery in part from time to time. If prior to the delivery of any products, those products become obsolete or are superseded by new products or the Company is not able to procure the supply thereof for any reason, the Company shall be entitled to cancel any contract for the sale of such products without liability or penalty to the Customer. Alternatively, the Company shall be entitled to substitute any product with a similar product if prior to delivery thereof, the products become obsolete or are superseded by new products or the Company is not able to procure the supply thereof for any reason
4.2 The Company will endeavour to complete services by the dates quoted, but any such dates are estimates only and are not binding. Time is not of the essence for the provision or completion of any services.
4.3 The Company shall be entitled to charge delivery/carriage fees where it is required to deliver products to an address that is beyond the areas covered by the Company’s normal delivery services (i.e. a distance of more than 20km from the Company’s offices). In addition, the Company shall be entitled to charge the Customer for all costs incurred by the Company in respect of special/additional packaging and/or transportation requirements in respect of any products or where required by statute or regulation.
4.4 If any products are to be installed, (as in the case of kitchens per say, but not limited to) or services are to be provided at the Customer’s premises, the following shall apply:
4.4.1 the Customer shall ensure that the Company is given reasonable access to the Customer’s premises during reasonable hours for that purpose;
4.4.2 whilst the Company will take all reasonable precautions to prevent damage to the Customer’s premises, the Company shall not be responsible or liable therefor;
4.4.3 the Customer shall ensure that the premises are suitably equipped and comply with all the Company’s and/or manufacturer’s specifications and requirements including size, power points, plumbing and lighting.
4.5 Without prejudice to the Company’s rights in terms hereof and at common law if the Company is not able to deliver products and/or provide services as a result of any failure by the Customer to comply therewith, the Company shall be entitled to charge the Customer for its wasted time and costs.
4.6 The Customer shall at the Customer’s own expense obtain all necessary consents, permits, licences or other authorities from all governmental, municipal, local or other competent authorities and others whose permission is or may be necessary for the importation, installation and/or use of products. The Company does not warrant or represent that any such consents, permits, licences or other authorities will be granted and a failure to obtain any one or other of the same by the Customer shall not invalidate any order accepted by the Company.
4.7 The Company shall be entitled to employ sub-contractors to provide products and/or all or any portion of the services.
4.8 Nothing in these terms and conditions shall prevent the Company using for any purpose, any know-how or experience including programming tools, skills and techniques gained or arising from the provision of any services.
4.9 The Company shall not be required to deliver products and/or render services to the Customer for so long as the Customer is in arrears with any payment owing to the Company from any cause. In the event of the Customer committing an act of insolvency, or being placed under provisional or final judicial management, liquidation or sequestration (whether provisional or final), the Company reserves the right to cancel any sale contract or order and/or to stop further deliveries of any product and performance of any services.
5. PRICE AND PAYMENT TERMS
5.1 Unless otherwise agreed in writing between the Company and the Customer, the Customer shall make payment of 65% (sixty five per centum) of the quoted price upon signed acceptance of the Company’s quotation and the remaining 30% (Thirty per centum) of the quoted price will be payable on delivery, and a further 5% on signature of the letter of satisfaction, without set-off or deduction, and free of exchange to the Company on the rates and in the amount specified in the Company’s quotation or otherwise within 30 (thirty) days of the date of the Company’s invoice. In respect of any services, invoices will be rendered monthly in advance and in respect of any product, invoices shall be rendered on delivery.
5.2 Interest shall be charged and paid on all outstanding amounts at the rate of 2% (two percent) above the publicly quoted prime overdraft rate charged by First National Bank from time to time. A certificate signed by a manager (whose designation or appointment it shall not be necessary to prove) of First National Bank shall be prima facie proof of such rate. Subject to clause 5.1, in the event of the Customer failing to effect payment of the invoiced amount within 7 (seven) days from date of written demand for such payment, the Company shall be entitled, at its option, and notwithstanding any indulgence or relaxation granted to the Customer, to cancel the agreement of sale or services and repossess the products concerned. The Company shall be entitled to resell such product either by auction or by private treaty, and the Customer shall be passed a credit for all amounts received in excess of the expenses of recovery and resale, and shall be liable for any shortfall. The exercise of the Company’s rights under this clause shall be without prejudice to any of the Company’s rights and remedies at law, including but not limited to the Company’s right to claim damages.
5.3 Any discount which the Company may have granted to the Customer shall be forfeited by the Customer if payment is not made to the Company on due date.
5.4 Payment may not be withheld pending the settlement of any claims or disputes and in the event of any amount due to the Company being handed to an attorney for collection, the Customer shall pay the collection fee, tracing fees and all other legal charges thereby incurred by the Company on the attorney and own client scale.
6.1 The Company shall not be liable under any circumstances for any loss or any damage, direct or indirect, consequential or otherwise, sustained by the Customer as a result of non-delivery or non-performance of any products or services or late delivery or late performance of any products or services or due to any other cause whatsoever.
7. PASSING OF OWNERSHIP AND RISK
7.1 Notwithstanding anything to the contrary herein contained ownership in and to the products sold remains vested in the Company until and shall only pass to the Customer upon the full purchase price therefor having been paid.
7.2 All risk in and to the products shall pass to the Customer upon delivery thereof as follows:
7.2.1 where products are carried/transported by the Company, delivery will occur when the products are handed over to the Customer at the Customer’s designated address specified in the Customer’s order;