1. Payment terms
1.1 THE PURCHASER agrees that any amount reflected in a Tax Invoice shall be due and payable unconditionally (a) Cash on Delivery; or (b) if THE PURCHASER is a Credit Approved Customer, within 30 days from the end of the month in which a Tax Invoice has been issued by DORMAKABA SA. Settlement is affected only on receipt of cash or due honour of cheque or similar payment instrument and shall be made to DORMAKABA SA free of exchange and without deductions of any nature. Any credit facilities granted to THE PURCHASER by DORMAKABA SA is entirely at the discretion of DORMAKABA SA and may be withdrawn at any time.
1.2 THE PURCHASER agrees to accept the receipt of electronic format statements, tax invoices, shipment documents (proof of delivery), credit and debit notes from DORMAKABA SA, which will be transmitted via email, and the following conditions thereto as required by South African Revenue Services and in terms of the provisions of the Value-Added Tax Act for the issuing of tax invoices, credit and debit notes:
1.2.1 Electronic documents (tax invoices, credit and debit notes) will be transmitted and issued to THE PURCHASER in 128bit encrypted PDF file format.
1.2.2 Both THE PURCHASER and DORMAKABA SA shall retain the electronic documents in its original encrypted format for a period of five years from the date of the delivery to which it relates.
1.2.3 The transmitted electronic document will constitute the original statement, tax invoice, credit or debit note. No other tax invoice, credit or debit note will be issued in respect of any specific delivery, unless as a copy of the original document.
2. Change of address
THE PURCHASER undertakes to notify DORMAKABA SA in writing within 7 (seven) days of any change of address.
3. Change of ownership
THE PURCHASER undertakes to notify DORMAKABA SA, in writing, within 7 (seven) days of any change in ownership of THE PURCHASER’S business, or should THE PURCHASER be a company, of its share transactions whereby the majority shareholding is affected. THE PURCHASER acknowledges that immediately upon any change of Ownership in THE PURCHASER any outstanding amount whether due or not shall be deemed to be forthwith payable by THE PURCHASER to DORMAKABA SA, and DORMAKABA SA reserves the right to suspend its credit terms on written notice to the PURCHASER until all requirements of DORMAKABA SA as a consequence of such change have been met in full
THE PURCHASER and the signatory hereto chooses Domicilium Citandi et Executandi (in other words, the address at which the PURCHASER and the signatory will accept all notices, legal documents and the like, whether or not the PURCHASER and/or the signatory is still at the address chosen) for all purposes arising out of this application at the physical address stipulated in Section A, clause 3.2 of this application.
5. Consent to sharing information and retention periods
5.1 For the purposes of making credit risk management decisions and preventing fraud, THE PURCHASER hereby warrants that DORMAKABA SA has consent to:-
5.1.1 Carry out a credit enquiry on THE PURCHASER and the Directors/Members/Partners/Trustees/Principals of THE PURCHASER from time to time with one or more credit bureaus, credit information agents, credit insurance companies or other creditors (trade references) of THE PURCHASER’S in terms of this agreement.
5.1.2 DORMAKABA SA may transmit details to credit bureaus, credit information agents, credit insurance companies or other creditors of THE PURCHASER’S of how THE PURCHASER has performed in meeting his/her/its obligations in terms of this agreement.
5.1.3 If THE PURCHASER fails to meet his/her/its commitments to DORMAKABA SA, DORMAKABA SA may record THE PURCHASER'S non-performance with credit bureaus, credit information agents, credit insurance companies or other creditors of THE PURCHASER.
5.2 Such information shall be retained for periods as stipulated in any applicable law, but no longer than the duration of the validity of this agreement. Where THE PURCHASER has not used a facility under this agreement for 12 months, THE PURCHASER will be required to re-apply for such a facility.
5.3 DORMAKABA SA is required to collect, process and share THE PURCHASER’S personal information. THE PURCHASER’S personal information is collected and processed by DORMAKABA SA’S staff, representatives and sub-contractors and DORMAKABA SA makes every effort to protect and secure THE PURCHASER’S personal information. THE PURCHASER is entitled at any time to request access to the information DORMAKABA SA has collected, processed and shared.
6. Purchase price and Pricing increments
6.1 The purchase price payable by PURCHASER for the goods purchased shall be DORMAKABA SA’s listed price for such goods at the date of delivery of the goods, unless otherwise agreed to in writing by DORMAKABA SA.
6.2 The purchase price does not include Value Added Tax which shall be paid by the PURCHASER in addition to the purchase price.
6.3 Prices quoted by DORMAKABA SA are determined from time to time and are subject to increases, at the discretion of DORMAKABA SA. DORMAKABA SA shall be entitled to increase the cost of goods delivered or services rendered to THE PURCHASER with prior written notice.
6.4 In instances where DORMAKABA SA’s listed prices are varied in accordance with 6.3 above between the date of the contract as per clause 7.3 below and the date of the delivery of the goods then the purchase price for such goods will be determined according to DORMAKABA SA’s listed price, as varied, applicable on the date of such delivery.
7. Valid orders
7.1 In the event of any order being given to DORMAKABA SA on an order form reflecting THE PURCHASER’S name as the entity from which the order emanates, such order shall be deemed to have emanated from THE PURCHASER, notwithstanding the fact that such order may have been given or signed by a person not authorised thereto by THE PURCHASER, in which event the PURCHASER shall be stopped from denying the validity thereof and such order will be deemed to constitute valid delivery. It is further the sole responsibility of THE PURCHASER to determine that goods ordered are suitable for the purposes of the intended use.
7.2 The acceptance of orders is subject to the availability of the goods at date of acceptance by DORMAKABA SA.
7.3 A Contract shall come into existence when DORMAKABA SA accepts an order for goods placed by the PURCHASER or when the PURCHASER accepts any offer to sell, or quotation for goods marketed by DORMAKABA SA by conveying such acceptance, in writing transmitted by facsimile, e-mail or delivered by hand or registered post.
8.1 THE PURCHASER agrees that the signature of any agent, contractor, sub-contractor or employee of THE PURCHASER on DORMAKABA SA’S official delivery note/invoice/waybill, or the delivery note of any authorised independent carrier will constitute valid delivery of the goods purchased.
8.2 Any delivery date stated on any order confirmation is approximate only. DORMAKABA SA shall not be bound by that date but will make all reasonable efforts to deliver by that date.
8.3 Each delivery is considered as a separate contract and the price thereof is payable accordingly.
8.4 Whilst DORMAKABA SA will endeavour to ensure that goods are delivered timeously, it shall not be responsible for any delays in the delivery of such goods, and THE PURCHASER shall not be entitled to refuse acceptance of such late deliveries.
8.5 The risk in and to the goods shall pass from DORMAKABA SA to THE PURCHASER at the time of delivery notwithstanding that ownership will not pass to THE PURCHASER until full payment of the purchase price, and until such payment has been made, the aforementioned goods shall not in any way be hypothecated or pledged. Where the goods are to be stored at the PURCHASER’s leased premises, the PURCHASER hereby undertakes promptly to inform the Lessor that DORMAKABA SA has retained the right of ownership over all goods, which are the subject matter of the Contract, and that those goods do not become subject to the Lessor’s hypothec for rent. Delivery shall be deemed to have taken place against signature of DORMAKABA SA’S delivery note, proof of posting if the goods are posted to THE PURCHASER or delivery to the South African Transport Services or Road Carrier if the goods are railed or transported by DORMAKABA SA. The Post Office/South African Transport Services or Road Carrier shall act as the agent of THE PURCHASER.
8.6 CARRIAGE: Normally carriage will be for THE PURCHASER’s account. Until further notice however, DORMAKABA SA will pay normal goods transport to THE PURCHASER’s business premises on all consignments, provided that the destination is THE PURCHASER’s own premises and that this is within the Republic of South Africa, Botswana or Namibia. Carriage costs for automatic door controls will be for THE PURCHASER’s account.
8.7 Should DORMAKABA SA be requested by THE PURCHASER to effect delivery of the goods by an alternative method, any increase in the cost of affecting such an alternative method of delivery shall be for THE PURCHASER’s account.
8.8 Notwithstanding any provision in this agreement to the contrary, DORMAKABA SA’s obligation to deliver the goods shall in all cases be subject to:
8.8.1 the availability of the goods, and
8.8.2 the timeous receipt by DORMAKABA SA of any and all instructions required by DORMAKABA SA for the execution of this agreement.
8.9 WEIGHT: The goods to be dispatched to THE PURCHASER shall be packed and weighed by DORMAKABA at its place of dispatch. The packed weight shall be marked on the packaging. Should THE PURCHASER elect not to weigh the goods on receipt, then he accepts the contents as declared by DORMAKABA SA. No claims for short delivery will be entertained unless THE PURCHASER can prove that the goods delivered are not of the weight declared on the packaging.
8.10 In the event of deliveries being affected by a recognised carrier then the risk in and to the goods shall pass to THE PURCHASER upon delivery thereof by DORMAKABA SA to each recognised carrier/depot.
8.11 Should THE PURCHASER elect to have delivery affected by an alternative method in terms of clause 8.10 above, then the risk in and to the goods so delivered shall pass to THE PURCHASER upon dispatch of such goods from DORMAKABA SA’s premises.
8.11 No objection or claim in respect of goods delivered will be entertained unless:
8.11.1 it is endorsed on the delivery note or waybill at the time of delivery at THE PURCHASER’s place of business; and
8.11.2 it is made in writing to both DORMAKABA SA and the carrier effecting delivery within 7 (seven) days from the date of dispatch of the goods.
8.12 Should THE PURCHASER not have endorsed the delivery note or waybill and objected in writing in terms of 8.11 above, then THE PURCHASER will be deemed to have received delivery of each and every item reflected on such delivery note or waybill.
9.1 Goods are guaranteed according to either DORMAKABA SA’S specific warranties, or the original Manufacturer’s warranties. Where indicated certain goods may be sold to THE PURCHASER on the basis of DORMAKABA SA not accepting any responsibility for latent defects in which case any product warranties are specifically excluded.
9.2 Should a product supplied to THE PURCHASER by DORMAKABA SA be faulty or require return for credit and where a warranty is applicable, THE PURCHASER shall contact DORMAKABA SA within fourteen (14) days from the goods becoming defective and arrange for the goods to be returned to DORMAKABA SA, where applicable.
9.3 Liability under clause 9.2 is restricted to the cost of replacement of faulty goods or granting of a credit to the value of such goods. Any goods returned must be accompanied by the original tax invoice as issued by DORMAKABA SA.
9.4 All warranties and guarantees shall become immediately null and void should any equipment be tampered with; seals be broken; or should the goods be operated outside of specifications. Damage caused by lightning strikes, power surges, power spikes, or other incidents beyond the control of DORMAKABA SA are not covered in any warranties.9.5 Should DORMAKABA SA find no fault with the returned goods, the PURCHASER must send DORMAKABA SA a replacement order to the same value OR, the goods will be returned to THE PURCHASER, and a 15% handling fee will be charged.
9.6 Where goods are returned for repair THE PURCHASER shall be required to accept a cost estimate prior to any repair work being carried out. Any item returned for repair to DORMAKABA SA may be sold to defray costs if such repair items are not collected within 90 days of such repair being carried out.
9.7 DORMAKABA SA does not accept the return of goods other than goods delivered in error or not corresponding with the specifications in this agreement. Such goods may be returned to DORMAKABA SA after agreement by DORMAKABA SA and obtaining a goods return authorisation (G.R.A.) number, which must accompany all goods returned. Goods will be returned at DORMAKABA SA’s expense within 5 (five) working days of receipt thereof by THE PURCHASER. Invoice/G.R.A. numbers must always be quoted when a request for a credit for such goods contemplated herein is made, such requests must be in writing.
9.8 Goods delivered in error or not corresponding with the specifications in the Contract will only be considered for credit to THE PURCHASER where such goods are:
9.8.1 returned undamaged to DORMAKABA SA within 5 (five) working days of receipt thereof by THE PURCHASER; and
9.8.2 are in their original packaging and have not been unpacked or used in part; and
9.8.3 are not defaced by price labels or other markings.
THE PURCHASER acknowledges DORMAKABA SA’S intellectual property rights in the goods and shall not infringe such intellectual property rights.
11. Payment to DORMAKABA SA
DORMAKABA SA does not appoint the Post Office as its agents for payments by post. All payments shall be made to DORMAKABA SA‘S place of business from where the goods were ordered. In the event of any payments being mislaid; lost in the post; or transferred to the incorrect banking account THE PURCHASER shall still be liable to DORMAKABA SA for payment. Should DORMAKABA SA at any time advise THE PURCHASER of any change to DORMAKABA SA’S banking account details THE PURCHASER shall confirm such change with a Manager of DORMAKABA SA before effecting any further payments, provided however that nothing contained herein shall be interpreted as obliging DORMAKABA SA to afford THE PURCHASER any such indulgence to effect payment after due date.
Set-off shall operate automatically as a matter of Law at the moment when reciprocal debts between DORMAKABA SA and THE PURCHASER come into existence, and independently of the will of the parties, and it shall not be necessary for DORMAKABA SA to specifically raise set-off.
13. Reservation of ownership
Until such time as THE PURCHASER has paid the purchase price in full in respect of any purchase of goods, the ownership in and to all such goods shall remain vested in DORMAKABA SA. DORMAKABA SA shall, in its sole discretion, without notice to THE PURCHASER, 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 PURCHASER 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 DORMAKABA SA. THE PURCHASER hereby waives any right it may have for a spoliation order against DORMAKABA SA in the event that DORMAKABA SA takes possession of any goods.
14. Responsibility for losses, damages or delays
14.1 DORMAKABA SA will not be in any way responsible for losses; consequential losses; damages or delays sustained by THE PURCHASER, irrespective of whether this is caused by or arising from any error; discrepancy; defect on specifications; measurements or other instructions; natural disasters, unavoidable accidents of any kind, acts of the State’s enemies, 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 or persons, whether within the Republic of South Africa or anywhere else, or any other cause or contingency whatsoever beyond the control of DORMAKABA SA.
14.2 DORMAKABA SA provides no guarantees or warranties (whether express or implied) as to the suitability of any goods for any purpose for which they are required.
15. Defaulting in payment
In the event of THE PURCHASER 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 PURCHASER.
16. Interest on overdue accounts
DORMAKABA SA shall be entitled to charge THE PURCHASER interest at the rate of 2% (two percent) per month from the moment any debt becomes overdue, provided however that nothing contained herein shall be interpreted as DORMAKABA SA affording THE PURCHASER any indulgence to make payment after due date.
17. Proof of Claims
A certificate signed by a manager or any director of DORMAKABA SA - whose position and signature shall not be necessary to prove - reflecting the amount owing by THE PURCHASER to DORMAKABA SA, in respect of any credit facilities granted to THE PURCHASER relating to THE PURCHASER’S dealings with DORMAKABA SA, and of the fact that such amount is due, owing and unpaid shall be considered as adequate proof – on its mere production – of the outstanding amount for the purpose of any action (whether by way of provisional sentence or otherwise), proof of debt on insolvency or for any purpose whatsoever where the amount of such claims is required to be established, and it shall rest with THE PURCHASER to prove that such amount is not owing and/or due and unpaid.18. Disclaimer
18.1 DORMAKABA SA shall under no circumstances be liable for any loss of profit or any damages whether direct or indirect, consequential or otherwise, sustained by the PURCHASER arising from any cause whatsoever including any damages arising as a result of the negligence of DORMAKABA SA, its servants, agents and sub-contractors save that DORMAKABA SA shall be liable to replace defective goods as per clause 9 above.
18.2 Insofar as any of DORMAKABA SA’s obligations in terms of the Contract are carried out by its servants, agents or sub-contractors, the provisions of clause 9.1 are stipulated also for their benefit.
18.3 The PURCHASER shall not have any claim of any nature whatever against DORMAKABA SA for any failure by DORMAKABA SA to carry out any of its obligations under the Contract as a result of force majeure, including but without being limited to any strike, lock-out, shortage of labour or materials, delays in transport, accidents of any kind, any default or delay by any sub-contractor or supplier of the company, riot, political or civic disturbances, the elements, any act of any State of Government, any delay in securing any permit, consent or approval required by DORMAKABA SA for the supply of goods under the Contract or under any other authority, or any other cause whatsoever beyond DORMAKABA SA’s control.
19.1 DORMAKABA SA may suspend any delivery of goods to the PURCHASER, cancel any order and/or stop granting the PURCHASER credit and claim payment of all amounts which the PURCHASER owes to DORMAKABA SA (even if not then due for payment), if:
19.1.1 the PURCHASER fails to pay any amount which the PURCHASER owes to DORMAKABA SA by the due date for payment;
19.1.2 the PURCHASER is subject to business rescue proceedings as contemplated in section 129 of the Companies Act, 2008;
19.1.3 the PURCHASER is placed under Debt Review in terms of the NCA or an Administration Order;
19.1.4 the PURCHASER takes steps to place itself, or is placed in sequestration or liquidation, whether voluntary or compulsory and whether provisionally or finally;
19.1.5 the PURCHASER commits any act of insolvency listed in section 8 of the Insolvency Act, 24 of 1936, or what would be an act of insolvency if committed by a natural person; or
19.1.6 any material information which the PURCHASER gives to DORMAKABA SA in any application for credit is incorrect, or the PURCHASER fails to disclose all of the required information.
19.2 Any cancellation shall be without prejudice to any accrued claims against the PURCHASER and claims which DORMAKABA SA may have for damages arising out of such cancellation.
20. Cancellation of orders for non-standard goods
20.1 Orders for non-standard Goods (“Specialised Orders”) may only be cancelled subject to this clause 20.
20.2 In the event that the PURCHASER cancels the Specialised Order at any time after acceptance thereof by DORMAKABA SA, the PURCHASER shall pay DORMAKABA SA for costs reasonably incurred up to the date of cancellation, including any costs payable by DORMAKABA SA to its suppliers / manufacturers relating to the Specialised Order. DORMAKABA SA shall therefore be entitled to charge the PURCHASER a reasonable penalty fee in accordance with the Consumer Protection Act.
20.3 DORMAKABA SA will use all reasonable and practical endeavours to mitigate its losses in this regard.
21. Consent to jurisdiction
Notwithstanding the amount which may at any time be owing by THE PURCHASER to DORMAKABA SA, 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 Magistrate’s Court for the determination of any action or proceeding which may be brought by DORMAKABA SA against THE PURCHASER arising out of any transaction between the parties, it being recorded that DORMAKABA SA shall be entitled, but not obliged, to bring any action or proceeding in the said court.
22. Recovery of legal /collection costs
Should DORMAKABA SA instruct its attorneys or collection agent to collect any overdue amounts, or to take any action against THE PURCHASER in the implementation or protection of DORMAKABA SA’S rights, DORMAKABA SA shall be entitled to the recovery of all legal or collection costs arising there from, on the scale as between attorney, agent or collection agency and own client.
23. 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 DORMAKABA SA shall not in any way operate as or be deemed to be a waiver by DORMAKABA SA of any rights under this contract or be construed as a novation thereof.
24. Severability of clauses
Each clause of these conditions of sale is severable, the one from the other and if any one or more clauses are found to be invalid or unenforceable, that clause/clauses shall not affect the balance of these conditions of sale, which shall remain of full force and effect.
25. Entire agreement
This contract contains the entire agreement between the parties and any other terms thereof whether express or implied or excluded here from and any variations, cancellations or additions to this contract 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 PURCHASER and THE SURETY / SURETIES, by their signatures hereunder, confirm that the information submitted in this application is true and correct in all respects and that they are entirely familiar with the terms and conditions contained herein.
26. Right to update
DORMAKABA SA reserves the right to update these conditions of sale from time to time on written notice to the PURCHASER which shall, on receipt of the updated conditions of sale from time to time, be bound to the same as if they were the original conditions of sale.
27. National Credit Act / Consumer Protection Act
In the event that the National Credit Act 34 of 2005 and/or Consumer Protection Act 68 of 2008 applies to this Contract or to a specific transaction, any provision of this Contract or of the particular transaction concerned which is in conflict with these acts shall be deemed to be deleted and shall not apply.