Terms & Conditions
DEFINITIONS
In these terms and conditions:
- “Agreement” means these written terms and conditions which form part and parcel of the Credit Application;
- “CPA” means the Consumer Protection Act, 68 of 2008;
- “Confidential information” means all confidential information proprietary to each party, including without limitation, information which is contained in proofs, pulls, samples, specimens, sketches, photographs, writings, ideas, systems, patents, lists of customers, products, trademarks, trade names, copyright and other intellectual property, computer software, computer disks, magnetic tapes, and the like and in relation to the compilation of statistics and data regarding all legal persons, collected by the Supplier from time to time;
- “Consumer” means a consumer in terms of the CPA;
- “Credit Application” means the Supplier’s written credit application submitted by the Consumer for a credit facility with the Supplier for the supply of Goods or Services and includes the Agreement;
- “Days” means a calendar day;
- “Delivery” means the time, date, place and method for delivery of the Product agreed in writing between the Supplier and the Consumer and “deliver” has a corresponding meaning;
- “Disbursement” means any expense incurred by the Supplier authorised in writing by the Consumer in respect of Goods or Services provided to it by the Supplier;
- “Goods” mean such goods produced or supplied by the Supplier deals with or trades in the ordinary course of its business including Special Order Goods;
- “Order” means the Supplier’s quotation accepted by the Consumer in writing or a repeat order, in whole or in part, in writing placed by the Consumer on the Supplier for Goods or Services;
- “Preliminary Work” means all experimental and creative work including sketches, samples, written copy, dummies, preparatory materials, proofs, pulls, samples, specimens, sketches, photographs, the writings and the like prepared or created by the Supplier for the Consumer’s approval in respect of an Order in anticipation of the Supplier producing Goods or rendering Services;
- “Product” means Goods sold and delivered or Services rendered by the Supplier to the Consumer, as the case may be, including any Disbursement;
- “Services” means mean such services rendered by the Supplier in the ordinary course of its business;
- “Special Order Goods” means special order goods in terms of the CPA i.e. goods that the Supplier expressly or implicitly was required or expected to procure, create or alter specifically to satisfy the Consumer’s requirements;
- “Supplier” means the supplier reflected in the Credit Application and “supply” has a corresponding meaning;
- “Trade secrets” means without limitation inventions, improvements, proofs, pulls, samples, specimens, sketches, photographs, writings, ideas, systems, patents, lists of customers, products, trademarks, trade names, copyright and other intellectual property rights owned by either party, from time to time;
- “Urgent Order” means any Order given by the Consumer to the Supplier in terms of which the Supplier is required to complete the requested Order within a period of less than 72 hours after receipt of the Order from the Consumer.
CREDIT FACILITY
The indication in the Credit Application of the amount of credit required, if extended by the Supplier, is merely a guide and shall not bind the Supplier should more or less credit be afforded at any time.
QUOTATIONS
The Consumer acknowledges and agrees that the Supplier’s quotation:
- will only be valid for 15 Days from the date of that quotation, unless otherwise specified in that quotation
- must be accepted by it in writing prior to any Product being supplied.
PRICES
The Consumer acknowledges and agrees that:
- Prices exclude VAT and delivery charges unless otherwise specified in the quotation concerned;
- Prices quoted and charged to the Consumer are based on continuous and uninterrupted production of the Goods;
- It is liable to pay the agreed price for the Product, including any Disbursements and Preliminary Work or any variation in terms of clauses 5 or 8 below.
CHANGE TO ORDERS
The Consumer acknowledges and agrees that any change to an Order may cause the price for the Order also to change. Any change to an Order shall be agreed to in writing by the Consumer and the Supplier prior to such change being affected.
POSTPONEMENT OR CANCELLATION OF ORDER
The Consumer acknowledges and agrees that it:
- shall give the Supplier at least 48 hours prior written notice of the postponement or cancellation of an Order;
- cannot cancel or postpone an Order for Special Order Goods without the Supplier’s prior written consent;
- shall be liable to the Supplier for a reasonable or agreed charge for any postponement or cancellation.
PRODUCTION AND DELIVERY
- The production of an Order shall be completed by the Supplier and delivered as stipulated in the Order concerned or within a reasonable time after the Order is placed unless it is prevented from doing so by the Consumer or circumstances beyond the Supplier’s control or the Consumer and Supplier have agreed to a variation in terms of clauses 5 or 8.
- The Consumer shall not unreasonably refuse or delay delivery.
- The Consumer shall inspect the Product on delivery to it to satisfy itself that the quantity delivered corresponds with the quantity as reflected on the Supplier’s delivery note.
- Delivery by the Supplier to any person or carrier other than the Consumer and as instructed by the Consumer shall be delivery to the Consumer.
- The Consumer agrees and acknowledges that the Supplier may charge the Consumer a reasonable storage charge for Product not collected by or delivered to the Consumer within 48 hours of the agreed time for collection by or delivery to it of such Product.
- The Consumer acknowledges and agrees that:-
- an over-supply or under-supply not in excess of 10% of the Goods ordered may be produced; and
- it shall be liable to pay for the actual quantity produced.
PRELIMINARY WORK
The Consumer agrees that:
- it may receive Preliminary Work for its review and approval, before production of an Order commences.
- Any alteration to the Preliminary Work shall be returned by the Consumer to the Supplier on a master set of such Preliminary Work marked either:-
- “Revised Preliminary Work required”.
- “Proceed after alterations”; or
- “Proceed with Order”; or
- The Consumer accepts all responsibility for undetected production errors if:-
- it does not require Preliminary Work;
- production is carried out as per the Consumer’s approval;
- any requests by the Consumer for change are not communicated in writing;
PROPRIETARY INTEREST
- All the work done by the Supplier including Preliminary Work but excluding any intellectual property belonging to the Consumer, relating to any Product supplied in respect of an Order shall remain the property of the Supplier and may not be reproduced in any form without the Supplier’s prior written permission, which permission shall not be unreasonably withheld. The Supplier may as it considers appropriate distribute or dispose of any Preliminary Work, products or materials relating to the Product supplied by the Supplier to the Consumer within 7 Days after the Order has been delivered, unless other prior written arrangements are or have been made between the Consumer with the Supplier;
- It is the Consumer’s responsibility to keep an original copy of all electronic manuscripts or image media provided to the Supplier for purposes of it providing a quotation to the Consumer or an Order.
DELIVERY NOTES
The Supplier’s delivery note, or waybill, or the consignment note of any authorised carrier signed by the Consumer or an employee or agent of the Consumer shall be preliminary proof on its mere production that the Product delivered corresponds with the quantity as reflected on the relevant delivery note, waybill or consignment note.
QUALITY AND QUANTITY COMPLAINTS
- The Consumer shall lodge any complaint in respect of the quality and/or quantity of the Product supplied in writing to the Supplier within 10 Days of delivery of that Product.
- The complaint shall clearly set out the nature of the complaint.
- Even though the Consumer has lodged a complaint, it shall not, under any circumstances, withhold payment in respect of a Product, or any part of a Product that is not part of or subject to the complaint concerned.
PAYMENT
- The Consumer shall make payment at the time of placing the order unless credit has been granted to the Consumer, in which case the Consumer shall make payment to the Supplier within 30 Days of the Supplier’s statement date or on such other date agreed to in writing between the Supplier and the Consumer;
- Except for what is stated in paragraph 11 above the Consumer shall under no circumstances be entitled to deduct, set off any amount, defer or withhold payments of any amounts due to the Supplier in terms of this Agreement;
- Should the Consumer fail to pay any amount due in terms of this Agreement on due date, such overdue amount shall bear interest at the maximum interest rate allowed by law;
- Should any amount owing by the Consumer to the Supplier in terms of this Agreement become overdue for payment, then the Supplier reserves the right to cancel this Agreement.
- The Consumer acknowledges and agrees that the Supplier, 7 days after any payment due by the Consumer becomes overdue, may exercise a general lien on all the Consumer’s Goods in possession of the Supplier.
CERTIFICATE
A certificate signed by one of the Supplier’s duly authorised employees showing the amount due and owing by the Consumer to the Supplier at any given time shall be on the face of it proof of the amount owing by the Consumer to the Supplier.
RESERVATION OF OWNERSHIP
Ownership of the Goods sold by the Supplier to the Consumer shall remain vested in the Supplier and will only pass onto the Consumer once it has made payment in full to the Supplier for such Goods.
RISK
- The Consumer acknowledges that all materials and products supplied by the Consumer to the Supplier will be held at the Consumer’s risk.
- The risk in and to the Product shall pass to the Consumer on delivery.
INDEMNIFICATION
- The Consumer acknowledges and agrees that the Supplier will not be responsible for:-
- imperfect work caused by defects in, or unsuitability of, material or equipment supplied by the Consumer;
- any material or goods owned by the Consumer wasted as a result of and during the normal course of production of Goods;
- any extra costs incurred to supply the Product ordered by the Consumer through the use of materials or equipment supplied by the Consumer or any third party on its behalf.
- The Consumer indemnifies the Supplier against any loss, liability, expense, or damage of any nature caused to or suffered by the Supplier as a result of the infringement of any third party’s trade secrets, propriety rights, any personal rights or copyright in any material provided by the Consumer to the Supplier for the purposes of an Order.
FORCE MAJEURE
In the event that the Supplier is unable to perform any obligation herein due to any circumstances beyond its control, including the action, intervention or decree of any Government, the inability to secure labour, materials, power or supplies or by reason of an act of God, civil disturbances, riots, states of emergency, strikes, lock-outs or other labour disputes, fire, flood or legislation, either party may terminate this agreement by means of written notice to the other party.
SECRECY AND CONFIDENTIALITY
The Consumer and Supplier agree and acknowledge that:
- All rights, title, interest and copyright in and to Trade Secrets and Confidential Information shall remain the exclusive property of the owner of the same;
- they shall each keep and maintain as strictly confidential all the Trade Secrets and Confidential Information given by one to the other for the purposes of this agreement;
- they shall each use their utmost efforts and diligence to guard and protect each other’s Trade Secrets and Confidential Information.
PROTECTION OF PERSONAL INFORMATION
- The Supplier will need to process Personal Information of the Consumer, which Personal Information is defined by The Protection of Personal Information Act No 4 of 2013 (“POPIA”).
- The Supplier will take all reasonable measures to process the Consumer’s Personal Information in a responsible, lawful and transparent manner as required by the provisions of POPIA, which processing will be done in accordance with its External Processing Notice, which can be found at https://qrgo.page.link/RUpSp
- By signing this agreement and ordering products or services from the Supplier, the Consumer acknowledges that it has read the External Processing Notice and agrees that the Supplier may process its Personal Information in accordance with the External Processing Notice.
- The Consumer warrants that any Personal Information provided to the Supplier belongs to it or that it has the authority to share such Personal Information.
DISPUTE
- Any dispute between the Supplier and the Consumer in regard to any aspect of this Agreement shall be referred firstly to mediation and if unsuccessful to arbitration. In the event that the Supplier and the Consumer are unable to agree on the appointment of a mediator or arbitrator within 5 Days of a dispute being declared by either in writing, either of them may approach for the purpose of such an appointment:
- the Chairperson of the Printing Industries Federation of South Africa in the case of a dispute of a product printing or technical nature, or
- the Chairperson of the Johannesburg Bar Council in the case of any other dispute
- The arbitration shall be conducted in terms of the Arbitration Act, 42 of 1965 with the parties retaining the right of appeal.
BREACH
Either party may cancel this agreement if either party commits a breach of any of the provisions of this Agreement and fails to rectify such breach within 7 Days after receiving written notice from the aggrieved party to do so.
LEGAL COSTS
If, as a result of any breach by the Consumer of any of the terms of this agreement, the Supplier instructs attorneys to make demand or institute legal proceedings against the Consumer, the Consumer shall be liable for and shall pay, on demand, all legal costs and disbursements so incurred, including the costs of any letter of demand, tracing agents fees and collection commissions on the scale as between attorney and own client.
JURISDICTION
The Supplier and Consumer consent to the jurisdiction of the Magistrate’s Court, despite the fact that the subject matter or the amount outstanding may otherwise exceed the jurisdiction of the Magistrate’s Court. Such consent does not preclude either of them from proceeding in any other court that has jurisdiction.
CONSENT
The Consumer specifically consents that the Supplier:
- May carry out a credit enquiry in respect of the Consumer;
- May access a Credit Bureau’s database before granting credit to the Consumer;
- May, where credit is granted, transmit details to a Credit Bureau of how the Consumer has performed in meeting its obligations under the account, and share such information with other Credit Bureaus for purposes of assessing further applications for credit by the Consumer (and its members, directors or partners as the case may be) and for occasional debt tracing, debt collection and fraud prevention purposes;
- If credit is granted in favour of the Consumer and the Consumer fails to meets its financial commitments to the Supplier, the Supplier may record the Consumer’s default with a Credit Bureau;
- May refer information relating to the Consumer’s credit performance to a Credit Bureau for banking and credit assessment, statistical analysis, and credit scoring purposes and use such information to identify products (including those supplied by third parties) which may be relevant to the Consumer;
- May record the existence of a Consumer’s account with the supplier at a Credit Bureau(s).
DOMICILIUM
- The Consumer chooses as its address for the purposes of the giving of any notice, the service of any process or for any other purpose arising from this agreement, the address as stipulated in point 8 of the Credit Application;
- The parties shall be entitled from time to time by written notice to one another, to vary their respective addresses to any other physical address in the Republic of South Africa;
- Any notice which is:
- Posted by pre-paid registered post to a party’s address shall be deemed to have been received by the party on the fourth day after the date of posting;
- Delivered by hand during the normal business hours of a party at the party’s address shall be deemed to have been received by the party at the time of delivery;
- Sent by telefacsimile or email to the party shall be deemed to have been received by that party on the day following the transmission thereof
- Actually received by a party even if not sent strictly in accordance with this clause 25 shall constitute proper delivery of that notice.
GENERAL
- No addition to, variation, or agreed cancellation of this Agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties;
- No indulgence which the Supplier may grant to the Consumer shall constitute a waiver of any of the rights of the Supplier nor preclude it from exercising any rights against the Consumer which may have arisen in the past, or which may arise in the future.
- The Consumer represents and warrants that the Credit Application has been completed in full and that all information given is true and correct and that the Consumer has disclosed to the Supplier all information reasonably material and required by the Supplier in order to enable the Supplier to make an informed decision regarding the Consumer’s creditworthiness.
- The parties record and agree that the Supplier has been induced to enter into this Agreement relying on the truth of these warranties and representations, all of which are deemed to be material.
- Notwithstanding any provisions of this Agreement, this agreement is subject to the provisions of the National Credit Act, Act No. 34 of 2005 (“the National Credit Act”) and in particulars Chapter 1, Part B, clause 5 and the relevant Chapters and Parts referred to therein. If there is any conflict between the provisions of this Agreement and the National Credit Act, the provisions of the National Credit Act will prevail.