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STANDARD TERMS AND CONDITIONS OF SALE

 

In these terms and conditions:-

 

1.             The goods means the goods as indicated on any company forms, price lists, quotations, orders or invoices.

 

2.             PRICES AND QUOTATIONS

2.1           The price of the goods sold or services rendered shall be the usual price as set out in the CUB3 price list at the time of the sale of the goods.

2.2           CUB3 has the right to change the prices of the goods from time to time without prior notice to the customer.

2.3           All quotes remain valid for 14 (Fourteen) days from the date of the quote, or until the date of issue of a new price, whichever occurs first.  The validity of any price quoted is subject to availability.

2.4           Any quote may be changed at any time in the event of any increase in the cost price of the goods, including currency fluctuations.  Price increases will only be affected if the goods have not yet been dispatched to the customer.

 

3              PAYMENT

3.1           The customer shall pay the amount on the tax invoice at the offices of CUB3.  Payment is due immediately save for credit-approved customers, in which event payment is due within 7 days from date of invoice.

3.2           Where the customer uses a postal service to effect payment to deliver or return goods such postal services shall be deemed to be the agent of the customer.  Likewise, where the customer uses Internet banking, the bank shall be deemed to be the agent of the customer.

3.3           The customer has no right to withhold payment or make set offs or deductions from any payment due by it for any reason whatsoever. No extension of payment of any nature will be granted unless reduced to writing and signed by the customer and a duly authorized representative of CUB3.

3.4           CUB3 shall have the right to suspend deliveries and to exercise its rights in terms of clause 4 if any amount due by the customer is unpaid.

3.5           If any amount owed is not settled in full (a) on due date (b) on demand. CUB3 is entitled to, without prejudice to any of its rights;

3.5.1        immediately institute action against the customer and/or cancel the sale and take possession of any goods delivered to the customer, including goods sold or disposed of by the customer which have not been paid for in full, and claim damages.

          

4.             WITHDRAWAL OF CREDIT FACILITIES

4.1           CUB3 decision to grant credit facilities to the customer and the nature and extent thereof is at the sole discretion of CUB3.

4.2          CUB3 reserves the right to withdraw, increase or decrease any credit facilities at any time without prior notice.

 

5.             ORDERS

5.1           The customer hereby confirms that the goods and services on the tax invoice issued duly represent the goods and services ordered by the customer at the prices agreed to by the customer and where performance/delivery has already taken place that the services and goods were inspected and that the customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.

5.2           CUB3 will accept all written and oral orders.  All such orders and any variations to orders will be binding, subject to these standard terms and conditions and may not be varied or cancelled without prior written consent from CUB3.  CUB3 will not be responsible for any errors or misunderstandings occasioned by the customer’s failure to make the order in writing.

5.3           Orders shall constitute irrevocable offers to purchase the goods in question at the usual prices of CUB3 as at the date when the customer places the order of the goods, subject to clause 2.4 above, and shall be capable of acceptance by CUB3 by the delivery of the goods, written acceptance or confirmation of the order.

5.4           The customer shall provide CUB3 with an order number when placing an order.

 

6.             DELIVERY

6.1           Any delivery note (copy or original) signed by the customer and/or its authorized representative and/or its nominated agent and held by CUB3, shall be prima facie proof that delivery was made to the customer.

6.2           CUB3 shall be entitled to split the delivery of the goods ordered in the quantities and on the dates it decides with the prior consent of the customer, which consent shall not be unreasonably withheld.

6.3           In the event of the customer choosing to engage its own third party to transport the goods, the customer indemnifies CUB3 against any claims of any nature whatsoever that may arise from such an agreement.

6.4           CUB3 is entitled to engage a third party on its behalf to transport all goods purchased by the customer to the delivery address stipulated by the customer.

6.5           Should the customer wish to receive delivery of the goods by a more expensive method of transportation than that normally used by CUB3, the customer shall make such request in writing and, in the event that CUB3 agrees to arrange such special delivery the additional charges shall be debited to the customer’s account and shall be payable by the customer.

6.6           CUB3 does not guarantee that the goods will be dispatched or delivered on any particular date and time, and the customer shall have no claim against CUB3 in respect of any loss occasioned by any reasonable delay in dispatch or delivery of any goods ordered and/or services rendered, nor may the customer cancel any order by reason of such reasonable delay.

6.7           Short deliveries or goods damaged in transport must be reported to CUB3 head office within 24 (twenty-four) hours of receipt.

6.8           All goods taken on an evaluation, approval, demonstration basis or all goods taken on consignment by the customer are deemed sold to the customer within 5 (five) working days of issue if not returned to CUB3 in a perfect condition in the original packaging and with all accessories and manuals intact.

6.9           CUB3 reserves the right to charge delivery charges, as and when necessary.

 

7.             OWNERSHIP AND RISK

7.1           All risk in and to all goods sold by CUB3 to the customer shall pass to the customer on delivery thereof.  Ownership in all goods sold and delivered shall remain vested in CUB3 until the full purchase price has been paid, and in the event of a breach of these terms and conditions by the customer, or if the customer is sequestrated or placed under liquidation or judicial management or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy a judgment granted against it within 7 (seven) days of the date of judgment or changes the structure of its ownership, CUB3 shall be entitled to take possession of the goods without prejudice to any further rights vested in CUB3, and is hereby irrevocably authorized to enter upon the customer’s premises to take possession of such goods without a Court order.

7.2           Goods in the possession of the customer bearing CUB3’ name, trademark, labels and/or serial no are deemed to be those for which payment has not yet been made, and should any breach of these terms occur, may be re-possessed by CUB3 in terms of paragraph 7.1 above. The customer shall fully insure the goods purchased from CUB3 against loss or damage until the customer has paid the full purchase price for such goods.  Pending payment to CUB3 for goods purchased, all benefits in terms of the insurance policy relating to the insurance of such goods, shall be ceded to CUB3.

7.3           The customer shall inform the landlord of the premises at which the goods are kept that such goods are the sole and absolute property of CUB3 until such time as the customer has paid the full purchase price to CUB3.

 

8.             BREACH OF CONTRACT

8.1           In the event of a breach by the customer, should the customer fail to remedy such breach within 48 (forty eight) hours after receipt of notice to that effect from CUB3, or should the customer repeatedly breach this agreement in such manner that the customer’s conduct is inconsistent with the intention or ability of the customer to carry out the terms of the agreement, or if the customer is sequestrated or placed under liquidation or enters into judicial management or any act if insolvency or enters into a compromise with its creditors or fails to satisfy a judgment granted against it within 7 (seven) days of the date of judgment or changes the structure of its ownership,  CUB3 shall be entitled without prejudice to its rights in law or in terms of this agreement to take possession of the goods and is hereby irrevocably authorized to enter upon the customer’s premises to take delivery of such goods without Court  order.

8.2           No claim, from customer, under these terms and conditions will arise unless the customer has, within 7 (seven) days of the alleged breach or defect occurring, given CUB3 30 (thirty) days written notice by pre-paid registered post to rectify any defect or breach of contract.

 

9.             LEGAL PROCEEDINGS

9.1           These terms and conditions shall be governed and construed under and in accordance with the laws of the Republic of South Africa

9.2           CUB3 shall, at its option and notwithstanding that the amount of its claim or the nature of the relief sought exceeds the jurisdiction of the Magistrate’s Court be entitled to institute action out of such court.

9.3           A certificate issued and signed by any director or manager of CUB3, whose authority need not be proved, in respect of any indebtedness of the customer to CUB3 or in respect of any other fact, including but without limiting the generality of the foregoing, the fact that such goods were sold and delivered, shall be prima facie proof of the customer’s indebtedness to CUB3 and prima facie proof of delivery of the goods in terms of this contract.

9.4           Any print out of computer evidence tendered by CUB3 shall be admissible evidence and the customer shall not be entitled to object to the admissibility of such evidence purely on the grounds that such evidence is computer evidence.

9.5           The customer’s address in Section A, of the credit application form shall be recognized as the customer’s Dom cilium for all purposes in terms of this contract whether in respect of the serving of any court process, notices that payment of any amount or communications of whatever nature.

9.6           In the event of the customer breaching any of its obligations and/or failing to timorously make payment of any amount to CUB3, the customer agrees to pay, and shall be liable to pay, all legal costs incurred by CUB3 in enforcing its rights in terms of these terms and conditions on the attorney/own client scale including collection charges, tracing agent’s fees, air fares and export fees.

9.7           Any document will be deemed duly received by the customer within:

9.7.1        3 (three) working days of pre-paid registered mail to any of the customer’s business or postal addresses or the Dom cilium address of the customer, or to the personal address of any director, member or owner of the customer; or;

9.7.2        24 (twenty four) hours of being faxed to any of the customer’s fax number’s or any director, member of owner’s fax number’s; or

9.7.3        on being delivered by hand to the customer or any director, member of the customer; or

9.7.4        48 (forty eight) hours if sent by overnight courier; or

9.7.5        24 (twenty-four) hours of being telexed to the customer’s telex number. 

9.8           The customer agrees that neither CUB3 nor any of its employees will be liable for any negligent or innocent misrepresentations made to the customer, nor shall the customer be entitled to reside from these terms and conditions on those grounds.

 

10.          ARBITRATION

10.1         CUB3 may refer any dispute arising from or in connection with this contract to arbitration which arbitration award shall be final and binding on the customer and CUB3.

10.2         The arbitrator will be a person agreed upon by the parties or failing agreement, appointed by the Arbitration Foundation of Southern Africa, who shall then finally resolve the dispute or issue in accordance with the Rules of the Arbitration Foundation of SA.

10.3         The arbitration must be held at the place and in accordance with whatever procedures, the arbitrator considers appropriate.

 

11.          NEGOTIABLE INSTRUMENTS

11.1         Acceptance of a negotiable instrument from the customer shall not be deemed to be a waiver of CUB3’ rights under this contract.  In relation to Cheque furnished by the customer to CUB3, the customer waives its right to insist on notice of dishonor or protest being given to it on the event that the Cheque is dishonored.

 

12.          RETURNED GOODS

12.1         Whilst CUB3 is under no obligation to accept the return of goods, the customer may apply to CUB3 for permission to return goods and if written permission is given -

12.2         the customer may return any defective goods to the premises of CUB3 or its nominee at the customer’s own cost.

12.2.1      any item delivered to CUB3 will form the object of a pledge in favor of CUB3 for present and past debts of the customer to CUB3 and CUB3 will be entitled to retain such pledge as a value determined as follows:

12.2.1.1   the difference between the selling price and the value of the goods at the time that the debt became due.

12.2.1.2   the value of any repossessed goods or retained pledge goods will be deemed to be the value placed on them by any sworn valuator after such repossession and such valuator will be prima facie proof of the value.

12.2.2      in the event of a cancellation of an order by the customer for goods accepted for return by CUB3, CUB3 reserves the right to charge a handling fee of up to 15% (fifteen) on the value of the order cancelled or goods returned.

12.2.3      the credit control department must be notified of the relevant invoice, packing slip and batch numbers before any claim will be considered.

 

13.          WARRANTIES AND INDEMNITY

13.1         Goods may be guaranteed under the manufacturer’s product specific warranties only, and all other guarantees and warranties including common law guarantees and warranties in relation to goods and services are hereby specifically excluded by CUB3.

13.2         All guarantees are immediately null and void should any equipment be tampered with or should the “seals” on the equipment be broken by anyone other than CUB3 or its appointed nominee, or should the goods be operated outside the manufacturer’s specifications.

13.3         To be valid, guarantee claims must be supported by the original tax invoice and the goods must be in their original packaging and must be accompanied by all accessories and manuals must be intact.  All items must be returned in “as new” condition.

13.4         No warranties whether express or implied shall apply, other than those provided in this contract. CUB3 specifically disclaim the implied warranty of merchantability and fitness for a particular purpose.  No representation or warranty, including but not limited to statements of capacity, suitability for use or performance made by employees of CUB3 shall be considered to be a warranty by CUB3.  Any such statements made shall not give rise to any liability or whatsoever nature on the part of CUB3, its employees, subcontractors or subsidiaries.    CUB3 will not be liable to the customer for any loss, damage or expense of any nature, whether direct, special, indirect or consequential, including but not limited to loss or profits arising out of CUB3 performance or customers’ use of the goods or services rendered.

13.5         The customer indemnifies and holds CUB3(including its employees, subcontractors or subsidiaries) harmless against all claims of whatsoever nature that may be brought or threatened against CUB3 by any third party arising from or in connection with any defect, latent or otherwise in any goods supplied and/or services rendered by CUB3

The customer shall not duplicate copyrighted material.  In the event of the customer duplicating copyrighted material, each attempt to do so will immediately render the full prevailing price in respect thereof payable to CUB3.

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