TRIPTYCH TERMS AND CONDITIONS OF SERVICE
1. DEFINITIONS
1.1 “The Supplier” means TRIPTYCH RESOURCES (PTY) LTD
the registered office of which is Mazars House, Rialto Road, Grand Moorings Precinct, Century City, 7441.
1.2 “The Customer” means the person who agrees to engage the Services of the Supplier.
1.3 “Request” means a written request for the Supplier to provide the Services by the Customer containing full details of the required Services.
1.4 “Services” shall mean the services listed in a Request and an Order Confirmation, offered by the Supplier including the transportation, importation and storage of goods.
1.5 “Quotation” means a written quotation in respect of Services requested by the Customer.
1.4 “The Purchase Order” means the Customer’s confirmation of acceptance of the
Quotation.
1.5 “The Conditions” means the terms and conditions of service set out hereunder
which govern all relations between the parties and which include any special terms
and conditions agreed in writing by the parties.
1.6 “The Order Confirmation” means the written acceptance by the Supplier of the Purchase Order confirming the details of the Service including the date for payment, where known.
1.7 “The Price” means the price for the Services as specified in the Quotation, including all disbursements, subject to exchange fluctuations, if applicable, changes in estimated costs or mutual variations. VAT will be charged.
1.8 “Invoice” means the invoice issued by the Supplier to the Customer in respect of the Services.
2. CONDITIONS AND ORDERS 8.2 After acceptance the Buyer shall not be entitled to reject the goods if
2.1 These conditions shall apply to all contracts for the provision of Services by the Supplier to the Customer to the exclusion of all other terms and conditions which the Customer may purport to imply under any Purchase Order, Confirmation Order or similar document.
2.2 On Request the Supplier will submit to the Customer a Quotation (which, where applicable, will be adjusted for currency fluctuations on the date of payment) in respect of the requested Services. Some costs may not yet be known at the time of the Request such as import duties, where applicable. Accordingly non-binding estimates will be provided to the Customer as part of the Quotation with such costs becoming final and binding on the Customer when known and upon issue of an Invoice.
2.3 If the Customer wishes to proceed with the Supplier’s Services the Customer shall confirm it’s Purchase Order within a period of 30 days from receipt of the Quotation.
2.4 The contract between the parties is concluded on the issue, by the Supplier, of the Order Confirmation. The Supplier is not obligated to accept an order.
2.5 Any variations to these terms and conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Supplier.
3. THE SERVICES
The exact details of the Services shall be as set out in the Request and Order Confirmation. The Services and the corresponding Price may be adjusted by mutual written agreement.
4. THE PRICE AND PAYMENT
4.1 The final Price payable shall be the price listed on the Invoice which is issued to the Customer which Price has been adjusted to take into account exchange fluctuations up and until the date of invoice, where applicable, changes in estimated costs and mutual variations of the Services subsequent to the issue of the Quotation.
4.2 The Supplier reserves the right to charge a non-refundable upfront deposit of up to 100% of the price in the Quotation, payable upon submission of a Purchase Order. Failure to pay a deposit requested by the Supplier shall render the order void.
4.3 The Price, or balance of the Price after taking any deposit into account, shall be payable to the Supplier within 7 days following receipt by the Customer of an invoice from the Supplier and shall be made free of any deductions or setoff of any amount.
4.4 Interest on the Price shall accrue from the date when payment becomes due from day to day until the payment is received at a rate of 2% above the prime lending rate, as listed by Absa Bank from time to time.
4.5 Payment shall be made to the Supplier by way of electronic funds transfer to the Suppliers nominated banking account. Payment can be made in Rands or US Dollars, dependant on the Quotation. The Customer’s reference number must be quoted.
4.6 A certificate signed by a director of the Supplier as to the amount of the Customer’s indebtedness hereunder shall be prima facie evidence of the amounts of indebtedness shown in that certificate and shall be binding on the Customer.
5. RECORDS
The Customer will be required to sign all documentation required by the Supplier to give effect to the Services. Full records of all transactions shall be maintained by the Supplier for a period of three years.
6. DELIVERY OF GOODS
6.1 Delivery of goods, where applicable, shall be made to the address of the Customer contained in the Request or Order Confirmation on the delivery date or as soon as practicable thereafter and time shall not be of the essence of this contract unless specifically agreed in writing by the Supplier.
6.2 The Cost of carriage, packing and any insurance of the goods in transit shall be as specified in the Order Confirmation.
7. STORAGE AND DEFERRED DELIVERY
In the event that the Customer, or the person nominated to accept delivery, does not, for any reason whatsoever, accept delivery of the goods within 7 days after the goods have become available for delivery and the Customer has been notified thereof then the Supplier shall be entitled to store the goods for the Customer and to charge a storage fee amounting to the total storage cost (plus interest if applicable) of the goods until delivery takes place provided that if the Customer will not accept delivery within 30 days of the Supplier being in a position to deliver the goods the Supplier may, at its discretion, rescind the contract to sell the goods and the Customer shall be liable to the Supplier for all and any losses suffered by the Supplier together with interest, the said storage fee and expenses incurred by the Supplier in connection with the sale. The Customer will also be responsible for any transportation and other costs associated with a deferred delivery.
8. ACCEPTANCE OF GOODS
The Customer shall be deemed to have accepted the goods 24 hours after delivery to the Customer at the delivery address.
9. STORAGE
Where the Services comprise of or include the storage of goods the charge for
such storage will be contained in the Quotation and Order Confirmation. Unless otherwise agreed the Customer will be responsible for the delivery and collection of the goods to and from the warehouse in which the goods will be stored. If the goods are not collected from the warehouse within 30 days of the termination of the storage period the Supplier will be permitted to sell those goods on the same terms, and with notice to the Customer, as contained in clause 7 or 10.
10. SECURITY
The Supplier shall have a lien over all of the Customer’s goods in its possession or under its control as security for the payment of the Service Price by the Customer. The Supplier shall be entitled to retain possession of any of the Customer’s goods pending payment of the Service price even if those goods do not relate to the Service Price outstanding. Should payment of the Service price not be effected within 30 days of the issue of an invoice by the Supplier to the Customer, the Supplier shall be entitled to, after notice to the Customer giving the Customer 5 days within which to effect payment and advising the Customer that failing payment the goods will be sold, without further notice to the Customer, sell the goods (without any liability to the Customer) by any means, including public auction, for a price which is reasonable in the circumstances. The sale proceeds, plus any direct selling costs, will be deducted from the amount owing by the Customer to the Supplier and the balance will remain payable by the Customer while any surplus shall be paid to the Customer.
11. TITLE AND RISK
In all cases title and risk, in respect of the goods, shall remain with the Customer.
12. WARRANTIES AND LIABILITIES
12.1 The Supplier will use its reasonable best efforts to meet any performance dates specified in a Request and/or an Order Confirmation provided that if no date is specified performance shall be effected within a reasonable period. The Supplier does warrant the exact time or date for delivery of goods.
12.2 The Supplier will provide the Services with a level of care, skill and diligence in accordance with best practice in the industry and use suitably qualified subcontractors and suppliers where required.
12.3 The Customer warrants that it is the owner of the goods, to which the Services relate, or is authorised to enlist the Services in respect of those goods.
12.4 While the Supplier will use its reasonable best efforts to protect and to take care of the Customer’s goods, it will not, at any time, be liable for any damage to or loss of those goods while in it’s or it’s subcontractors’ or suppliers’ possession, or any other loss, however caused, such damages or loss including indirect or special damages, consequential loss and loss of profits.
12.5 The Customer will be responsible for taking out a contract of insurance over the goods. Notwithstanding the above, the Supplier may accept liability for loss of or damage to the goods up to an agreed amount upon written agreement and subject to an additional agreed fee payable by the Customer to the Supplier. In such circumstances the Customer shall notify the Supplier of any incident giving rise to a claim for loss of or damage to the goods as soon as the Customer reasonably became aware of such event.
12.6 The Supplier shall not be liable for the failure to timeously deliver any goods other than in cases where such failure was due to the Supplier’s gross negligence.
12.7 The Supplier does not warrant the quality of any imported goods nor that they are fit for the purpose for which they are intended by the Customer.
13 INDEMNITY
The Customer will indemnify and hold the Supplier harmless against any claim made by a third party against the Supplier in respect of the performance of the Services.
14. SURETY
In the event of the Customer being a juristic person, the Customer’s representative as set out in 1.1.1, or another person nominated by the Customer in writing, agrees to be bound jointly and severally as surety and co-principal debtor with the Customer to the Supplier and shall sign a surety agreement prior to the provision of the services.
15. PROPER LAW AND JURISDICTION
The contract is subject to the Law of the Republic of South Africa. The Customer consents to the jurisdiction of the Magistrate’s Court in respect of any action arising out of this contract and notwithstanding the amount of that claim
16. ARBITRATION
Where a dispute arises between the parties for which no remedy is contained in this Engagement or the standard terms, such dispute may, by agreement between the parties, be resolved by way of arbitration to be held at the Supplier’s registered offices, by an Arbitrator appointed by mutual agreement or failing which appointed by the President of the Cape Law Society and whose decision shall be final and binding on the parties.
17. BREACH
If any party breaches any material provision or term of these standard terms or the Engagement (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fails to remedy such breach within 7 days of receipt of written notice requiring it to do so (or within such further period as may be reasonable in the circumstances) then the aggrieved party shall be entitled without notice, in addition to any other remedy available to it at law or these standard terms, including obtaining an interdict, to cancel the Engagement or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved party's right to claim damages.
18. FORCE MAJEURE
The Supplier shall be entitled to rescind the contract (without liability) and to return any deposit paid by the Customer in the event that the Supplier’s performance of the contract is hindered or prevented by strikes or other trade disputes, riots, war (declared or undeclared), acts of civil insurrection fire, flood, accident or other cause beyond the control of the Supplier preventing it from performing the contract.
19. NO AMENDMENT, WAIVER
No amendment or consensual cancellation of this Engagement or any provision or term hereof or of the standard terms or any document arising out of this Engagement or the standard terms, shall be effectual unless agreed upon and reduced to writing between the parties.