STANDARD TERMS AND CONDITIONS OF AGREEMENT
In these terms and conditions:-
"Goods" means the goods as indicated on any of NerdLab forms, price lists, quotations, orders or invoices.
"Nerdlab" refers to NerdLab CC a company registered in the RSA
1. PRICES AND QUOTATIONS
1.1 The price of the goods sold or services rendered shall be the price as set out in NerdLab's quotation at the time of the sale of the goods or services rendered, unless by prior written agreement between the parties.
1.2 NerdLab has the right to change the prices of the goods or services rendered from time to time without prior notice to the customer which changes shall be effective immediately.
1.3 All quotes remain valid for 7 (seven) days from the date of the quote. The validity of any quotation is subject to availability. Should the goods not be available, the quote will not be binding upon NerdLab.
1.4 Any quote may be changed at any time in the event of an increase in the cost price of the goods, including currency fluctuations. Price increases will only be affected if the goods or services have not yet been dispatched or rendered to the customer.
2.1 The customer shall pay the amount on the tax invoice at the offices of NerdLab. Payment is due and payable on the 28 th of every month.
2.2 The customer has no right to withhold payment or make set-
2.3 NerdLab 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.
2.4 If any amount owed is not settled in full on due date or on demand. NerdLab is entitled to, without prejudice of any of its rights to;
2.4.1 Immediately institute legal 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 to claim damages.
2.5 Should any amount not be paid by the customer on due date, the full outstanding amount in respect of all purchases by the customer shall become immediately due, owing and payable, and the customer shall be liable to pay interest compounded monthly in respect of amounts unpaid at the compound rate of 5% (five percent) above the prime overdraft rate of Standard Bank on all overdue amounts from due date until date of payment, calculated and payable monthly in advance.
3. WITHDRAWAL OF CREDIT FACILITIES
3.1 NerdLab's decision to grant credit facilities to the customer and the nature and extent thereof is at the sole discretion of NerdLab.
3.2 NerdLab reserves the right to withdraw, increase or decrease any credit facilities at any time without prior notice. Should NerdLab elect to withdraw such credit facilities then the full amount due on the account shall become immediately due owing and payable.
4.1 The customer hereby confirms that the goods and services rendered 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 rendered and goods supplied 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.
4.2 NerdLab will accept all written orders. Any 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 NerdLab. NerdLab will not be responsible for any errors or misunderstandings occasioned by the customer's failure to make the order in writing.
4.3 The customer shall provide NerdLab with an order number when placing the order.
5.1 Any delivery note (copy or original) signed by the customer and/or its authorized representative and/or its nominated agent and held by NerdLab, shall be prima facie proof that delivery and/or services rendered were made to the customer.
5.2 NerdLab 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 unreasonable withheld.
5.3 In the event of the customer choosing to engage its own third party to transport the goods, the customer indemnifies NerdLab against any claims of any nature whatsoever that may arise from such an agreement.
5.4 NerdLab 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 without proper consent of the customer.
5.5 Should the customer wish to receive delivery of the goods by a more expensive method of transportation than that normally used by NerdLab, the customer shall make such request in writing and, in the event that NerdLab agrees to such special delivery, the additional charges shall be debited to the customer's account and shall be payable by the customer immediately.
5.6 NerdLab 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 NerdLab 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.
5.7 Short deliveries or goods damaged in transport must be reported to NerdLab within 24 (twenty-
6. OWNERSHIP AND RISK
6.1 All risk in and to all goods sold by NerdLab to the customer shall pass to the customer on delivery thereof. Ownership in all goods sold and delivered shall remain vested in NerdLab 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. NerdLab shall be entitled to take possession of the goods without prejudice to any further rights vested in NerdLab, and is hereby irrevocable authorised to enter upon the customer's premises to take possession of such goods without a Court order.
6.2 Goods in the possession of the customer bearing NerdLab name, trademark, labels and/or serial number are deemed to be those for which payment has not yet been made, and should any breach of these terms occur, may be repossessed by NerdLab in terms of paragraph 6.1 above.
7. BREACH OF CONTRACT
7.1 In the event of a breach by the customer, and should the customer fail to remedy such breach within 48 (forty-
7.2 No claim, from the customer, under these terms and conditions will arise unless the customer has, within 7 (seven) days of the alleged breach or defect occurring, given NerdLab 30 (thirty) days written notice by pre-
8. LEGAL PROCEEDINGS
8.1 These terms and conditions shall be governed and construed under and in accordance with the laws of the Republic of South Africa.
8.2 NerdLab shall, at its option and not withstanding that the amount of its claim and/or the nature of relief sought exceeds the jurisdiction of the Magistrate's Court be entitled to institute action out of such court and the customer agrees and consents to the jurisdiction of such Court.
8.3 A certificate issued and signed by any director or manager of NerdLab, whose authority need not be proved, in respect of any indebtedness of the customer to NerdLab or in respect of any other fact, including but without limiting the generality of the a foregoing, the fact that such goods were sold and delivered, shall be prima facie roof of the customer's indebtedness to NerdLab and prima facie proof of delivery of the goods in terms of this contract.
8.4 Any printout of computer evidence tendered by NerdLab shall be admissible evidence and the customer shall not be entitled to object to the admissibility of such evidence purely on the grounds that it is computer evidence.
8.5 The customer's physical address in the credit application form shall be recognized as the customer's domicilium citandi et executandi for all purposes in terms of this contract whether in respect of the serving of any court process, notices for payment of any amount or communications of whatever nature. The customer may only change his domicilium on written notice to NerdLab personally to one of the Directors. No other manner of service will sufficiently constitute a change in the customer’s domicilium citandi et executandi.
8.6 In the event of the customer breaching any of its obligations and/or failing to timeously make payment of any amount to NerdLab, the customer agrees to pay and shall be liable to pay, all legal costs incurred by NerdLab 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 expert witness fees.
8.7 Any document will be deemed duly received by the customer within:
8.7.1 3 (three) working days of dispatch of pre-
8.7.2 24 (twenty-
8.7.3 on being delivered by hand to the customer or any director, member or owner of the customer; or
8.7.4 48 (forty-
8.7.5 24 (twenty-
8.8 The customer agrees that neither NerdLab 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 resile from these terms and conditions on those grounds.
9.1 NerdLab may in its discretion refer any dispute arising from or in connection with this contract to arbitration which the customer hereby agrees to, which arbitration and award shall be final and binding on the customer and NerdLab.
9.2 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 Southern Africa.
9.3 The arbitration must be held at the place and in accordance with whatever procedures the arbitrator considers appropriate.
10. NEGOTIABLE INSTRUMENTS
10.1 Acceptance of a negotiable instrument from the customer shall not be deemed to be a waiver of NerdLab's rights in terms of this contract. In relation to cheques furnished by the customer to NerdLab, the customer waives its right to insist on notice of dishonour or protest being given to it on the event that the cheque is dishonoured.
11. RETURNED GOODS
11.1 Whilst NerdLab is under no obligation to accept the return of goods, the customer may apply to NerdLab for permission to return goods and if written permission is given the customer may return any defective goods to the premises of NerdLab or its nominee at the customer's own cost.
11.2 The goods must be returned in the condition the customer received them, failing this NerdLab is under no obligation to accept the return of the goods and the customer will be liable for the full amount.
11.3 Any item delivered to NerdLab will form the object of a pledge in favour of NerdLab for present and past debts of the customer to NerdLab and NerdLab will be entitled to retain such pledge as a value determined as follows;
11.3.1 The difference between the selling price and the value of the goods at the time that the debt became due.
11.3.2 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.
11.4 In the event of a cancellation of an order by the customer for goods accepted for return by NerdLab, NerdLab reserves the right to charge a handling fee of up to 15% (fifteen percent) on the value of the order cancelled or goods returned.
11.5 The credit control department must be notified of the relevant invoice, packing slip and batch numbers where applicable, before any claim will be considered.
12. WARRANTIES AND INDEMNITY
12.1 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 NerdLab.
12.2 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 NerdLab or its appointed nominee, or should the goods be operated outside the manufacturer's specifications.
12.3 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 intact. All items must be returned in "as new" condition.
12.4 No warranties whether express or implied shall apply, other than those provided in this Contract. NerdLab specifically disclaims 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 NerdLab shall be considered to be a warranty by NerdLab. Any such statements made shall not give rise to any liability of whatsoever nature on the part of NerdLab, its employees, subcontractors or subsidiaries. NerdLab 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 of profits arising out of NerdLab's performance or customer's use of the goods or services rendered.
12.5 The customer indemnifies and holds NerdLab (including its employees, subcontractors and subsidiaries) harmless against all claims of whatsoever nature that may be brought or threatened against it and/or NerdLab by any third party arising from or in connection with any defect, latent or otherwise in any goods supplied and/or services rendered by NerdLab.
12.6 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 due and payable to NerdLab.
13.1 NerdLab's liability in terms of a manufacturer's warranty is restricted to, in NerdLab's or the manufacturer's discretion, the cost of repair or replacement of faulty goods or services or the granting of credit.
13.2 In the case of repairs undertaken by NerdLab repair quotes given are merely estimates are not binding on NerdLab and are subject to adjustment by NerdLab. NerdLab will not be held liable should any of the goods be damaged in the repair process and the customer hereby exempts NerdLab from any liability in regards thereto.
13.3 The customer hereby agrees that any item returned for a repair may be sold by NerdLab to defray the cost of such repair if the item remains uncollected for a period of 30 (thirty) days after the repair has been completed.
14.1 NerdLab reserves the right in its sole discretion to vary or amend these terms and conditions from time to time and any such amended or varied terms and conditions shall be binding on the customer from the time that the customer is notified thereof.
14.2 This contract represents the entire agreement between NerdLab and the customer and shall govern all future contractual relationships between NerdLab and the customer.
14.3 No amendment and/or alteration and/or deletion and/or cancellation of these terms and conditions, whether consensual or unilateral or bilateral shall be of any force and effect unless reduced to writing and signed by a director of NerdLab. No agreement, whether consensual or unilateral or bilateral, purporting or obligating NerdLab to sign a written agreement to amend, alter, vary, delete, add or cancel these terms and conditions shall be of any force and effect unless reduced to writing and signed by a director of NerdLab.
14.4 No relaxation or indulgence which NerdLab may grant the customer shall prejudice or be deemed to be a waiver of any of NerdLab's rights in terms of these terms and conditions.
14.5 The customer shall not cede its rights nor assign its obligations under these terms and conditions.
14.6 NerdLab shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of these terms and conditions to any third party without prior notice to the customer.
14.7 The customer undertakes to notify in writing NerdLab within 7 (seven) days of any change of address or change in director, shareholder, or the information set out in the Credit Application, Dealer Application Form and/or Dealer Credit Application Form.
14.8 The headings in this document are included for convenience and are not to be taken into account for the purpose of interpreting this contract.
14.9 Each of the terms herein shall be a separate and divisible term and if any such term becomes unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of any of the other terms of these terms and conditions.
14.10 The customer undertakes to inform NerdLab in writing at least 14 (fourteen) days prior to the intended selling or alienating of the whole or of any part of the customer business and failure to do so will constitute a material breach of this contract entitling NerdLab to cancel the contract without further notice to the customer.
14.11 Goods are manufactured for standard commercial use, and are not intended for use in critical safety systems, nuclear facilities, or for the production of chemical or biological explosives. The customer undertakes to exercise due care to ensure that these restrictions are not breached by it.
15. DISCLOSURE OF PERSONAL INFORMATION
15.1 The customer understands that the personal information given in the Credit Application Form, Dealer Application Form and/or Dealer Credit Application Form is to be used by NerdLab for the purpose of assessing creditworthiness. The customer confirms that the information given in the aforementioned forms is accurate and complete. The customer further agrees to update the information supplied as and when necessary in order to ensure the accuracy of the above information, failing which NerdLab will not be liable for any inaccuracies.
15.2 NerdLab has the customer's consent at all times to contact and request information from any persons, credit bureau or businesses including those mentioned in the Credit Application Form, Dealer Application Form and/or Dealer Credit Application Form, and to obtain any information relevant to the customer's credit assessment, including but not limited to information regarding the amounts purchased from suppliers per month, length of time customer has dealt with each supplier, type of goods purchased and manner and time of payment.
15.3 The customer agrees and understands that information given in confidence to NerdLab by a third party on the customer will not be disclosed to the customer.
15.4 The customer hereby consents to and authorises NerdLab at all times to furnish credit information regarding the customer's dealings with NerdLab to a credit bureau and to any third party seeking a trade reference regarding the customer in his dealings with NerdLab.
16. BINDING CAPACITY OF THESE TERMS AND CONDITIONS
16.1 By completing and signing the Credit Application, Dealer Application Form and/or Dealer Credit Application Form, the customer agrees to be bound by all the terms and conditions as set out above, without limiting the generality thereof, and agrees that all transactions concluded with NerdLab shall be subject to these terms and conditions.
16.2 Clause 16.1 above is enforceable whether the customer has requested and read a copy of these terms and conditions, or failed for any reason whatsoever to do so.